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January 15, 1971

Hillard CHUBBS, Plaintiff,
The CITY OF NEW YORK and Policeman Cameron Reese, #23495, of 88th Precinct, Brooklyn, New York, Defendants

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 This is a civil rights case (70-C-996) against an arresting officer and the City of New York seeking damages of $1,500,000 for false arrest and illegal detention. 42 U.S.C. § 1983. Plaintiff was arrested one evening, as he claims without probable cause; identified by the complaining witness almost immediately; and held, in his submission illegally, until the next morning when he was arraigned. The arrest led to plaintiff's conviction after trial by jury of first degree sodomy and burglary and second degree assault. He received a sentence of fifteen to twenty years. These convictions have been affirmed. App. Div., 316 N.Y.S. 2d 994 (1970). Leave to appeal was denied on December 10, 1970.

 Even though plaintiff's civil rights action states a valid claim for relief, the probability of his obtaining a significant remedy is miniscule and the burdens on the court, defendants, the bar and the penal system of allowing the litigation to proceed are great. Under the circumstances described below we refuse to permit this hopeless case to proceed.

 One petition for a writ of habeas corpus arising from the conviction has already been dismissed by this Court. United States ex rel. Chubbs v. Deegan, 70-C-1064. A second petition (71-C-1) has been filed based on the theory that the policeman's testimony corroborating complainant's identification violated defendant's constitutional rights; this petition must also be dismissed.


 Petitioner, a prisoner in the State Prison at Auburn, New York, mailed a handwritten complaint and motion for leave to proceed in forma pauperis and for assignment of counsel to this Court in August of 1970. He alleges that at 6:25 P.M. on March 8, 1965 on a street corner in Brooklyn he was arrested and "asked" by a police officer to accompany him to a restaurant where he was "identified by the complainant witness," who worked there, "as the man who Assaulted and Raped her on the early hours of March 8, 1965 at her house." The locations referred to in the complaint are, the Court judicially notices, a short distance from each other in the Bedford-Stuyvesant area. See, United States v. City of New York, 132 F. Supp. 779, 782 (E.D.N.Y. 1955). "After the identification was made," he "was placed formally under Arrest" and then taken to the precinct house where he was "charged." He was "Arraigned in the Criminal Court" on March 9, 1965 at approximately 10:25 A.M.. On July 22, 1965 he was found guilty by a jury.

 Although the complaint is ambiguous, the claim appears to be that plaintiff was "arrested at approximately 6:25 P.M." on March 8 without a warrant and without probable cause -- apparently before the identification in the restaurant by the victim -- "since, although, the police did have a description of the person who Allegedly Committed the Crime, there was no Reason to believe the plaintiff was him, until identified by the Complainant." He seeks damages on the ground of an illegal arrest, "Illegal imprisonment for 16 hours," "Illegal delay in Arraignment," and indictment for a more serious crime than was charged in the affidavit.

 The Court ordered the complaint filed and docketed and served upon defendants without prepayment of fees. It denied the motion for assignment of counsel with permission to renew upon a showing of some merit.

 In November defendants answered by a general denial and general allegations of lack of jurisdiction. All parties requested a jury trial. Relying solely on the pleadings and legal argument, plaintiff moved for summary judgment. Following denial of plaintiff's motion for summary judgment, plaintiff moved for (1) a pre-trial conference and the fixing of a trial date; (2) assignment of counsel; (3) a writ of habeas corpus directing production of plaintiff in court for the purpose of conducting the trial; (4) issuance of subpoenas for witnesses for the trial; and (5) discovery of specified documents. The Court reserved decision on this motion.


 Prior experience with cases of this kind suggested that the plaintiff would have difficulty pressing this litigation without an attorney and that the Corporation Counsel of the City of New York, appearing for defendants, would give the Court little assistance. Accordingly, in September it wrote to a member of the bar in whom it had confidence requesting an investigation of the matter before the Court took further action. He was to make a factual and legal inquiry to determine whether there was sufficient merit in the case to warrant appointment of an attorney -- i.e., "whether counsel might possibly be of assistance." To avoid some of the burdens of the attorney-client relationship while affording the protection of the attorney-client privilege the Court instructed this attorney as follows:

"It should be clearly understood that you are not being appointed as counsel and you have no obligation or responsibility to the plaintiff or this Court as counsel. Nevertheless, for purposes of the attorney-client privilege, any communication with the client should be treated by you as if made in the course of negotiations between lawyer and client to determine whether representation will be undertaken. Thus, the attorney-client privilege will apply."

 The report of the attorney was not encouraging to plaintiff but it did conclude, as does the Court, that a claim has been stated within the four corners of the complaint. The pertinent parts of the report are set out below:

"1. Unlawful arrest
Technically, this claim appears to state a cause of action against the arresting officer. The City is probably not a proper party defendant. Monroe v. Pape, 365 U.S. 167, 187-192 [81 S. Ct. 473, 5 L. Ed. 2d 492] (1961). While plaintiff was convicted of the criminal charges for which he was arrested, it is possible that probable cause of his arrest did not exist at the time he was arrested, due to an insufficient description by the complainant of her assailant. Contra, Palma v. Powers, 295 F. Supp. 924, 941 (N.D. Ill. 1969) (plaintiff's criminal conviction 'conclusively establishes that there was probable cause for his arrest.').
"There is substantial authority that any unconstitutional arrest is actionable under 42 U.S.C. § 1983, and that the plaintiff need not allege that the arresting officer acted maliciously or that the arrest constituted a flagrant violation of the plaintiff's Fourth Amendment rights. Basista v. Weir, 340 F.2d 74, 81 (3d Cir. 1965); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975 [84 S. Ct. 489, 11 L. Ed. 2d 420] (1964); Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968). Contra, Notaras v. Ramon, 383 F.2d 403 (9th Cir. 1967).
"However, since Chubbs' complaint acknowledges that probable cause for his detention was established once the complainant identified him, then (assuming his initial arrest was made without probable cause) his damages for the brief period during which he was under unlawful restraint would appear to be negligible. Since Chubbs was quickly identified by the complainant, and later convicted of the very serious crimes for which he was arrested, there would seem to be nothing in the arresting officer's conduct warranting the imposition of punitive damages.
"2. False imprisonment and delay in arraignment
"The Southern District has held that these claims are not actionable under 42 U.S.C. § 1983. Bradford v. Lefkowitz, 240 F. Supp. 969, 976-977 (S.D.N.Y. 1965). In any event, since Chubbs concedes that probable cause for his detention was established soon after his initial arrest, his detention was probably not in itself unlawful.
"As for the delay in arraignment, Chubbs does not allege that he confessed during the delay, or was otherwise prejudiced by the delay. Compare Mallory v. United States, 354 U.S. 449 [77 S. Ct. 1356, 1 L. Ed. 2d 1479] (1957). At any rate, an overnight delay in arraignment may not necessarily be deemed excessive.
"3. Indictment for a more serious crime than that charged in the arresting officer's affidavit
"This apparently violates no constitutional or statutory provision. People ex rel. Hirschberg v. Close, 1 N.Y. 2d 258 [152 ...

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