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July 15, 1981

Travis JACKSON, Plaintiff,
Honorable Denis DILLON, District Attorney, Nassau County; Detective O'Connor, Nassau County Police Department; and Police Officer Kilbride, Village of Freeport Police Department, Defendants

The opinion of the court was delivered by: NEAHER


Plaintiff pro se, a State prisoner currently serving a term of imprisonment following his conviction for robbery, has instituted this civil rights action against the District Attorney of Nassau County, a detective of the County's police department, and an officer of the Freeport, Long Island, police department. He seeks damages for an alleged violation of constitutional rights in connection with statements he made and a confession he signed acknowledging his participation in the robbery. The action is now before the Court on defendants' motions to dismiss the complaint for failure to state a claim and for summary judgment. *fn1" For the reasons which follow, the motions are granted.

 Prior to the start of plaintiff's first trial, the Nassau County Court denied his motion to suppress the statements and confession. The evidence was introduced at plaintiff's trial and he was found guilty of robbery, grand larceny and petit larceny. On appeal, the New York Court of Appeals reversed the trial court's decision on the motion to suppress and ordered a retrial at which the tainted evidence could not be used. People v. Jackson, 41 N.Y.2d 146, 391 N.Y.S.2d 82, 359 N.E.2d 677 (1976).

 The Court of Appeals reversed on the basis of the following facts: On the evening of December 20, 1973, plaintiff voluntarily appeared at the First Precinct, Nassau County Police Station. He was informed that he, as well as Larry Davis, a young acquaintance of his, were both suspected in a robbery of a pharmacy that had occurred earlier that day. Plaintiff was taken upstairs for questioning and was advised of his rights, including his right to counsel. At this point plaintiff told the interrogating officers that he did not wish to speak with them until he had consulted with an attorney. The officers and plaintiff then made several unsuccessful attempts to place a telephone call to a Muslim mosque where plaintiff believed he could obtain counsel.

 Thereafter, notwithstanding plaintiff's request for an attorney, the interrogating officers continued to question him. In addition, plaintiff was confronted with the tearful mother of Davis, who pleaded with him to tell the police the truth and explain her son's non-involvement. At this point, plaintiff admitted that Davis did not know about the robbery and had only been used by plaintiff to obtain his car. Plaintiff expressed a willingness to discuss the incident and, after being advised of his constitutional rights a second time, signed a waiver of those rights. He then made incriminating statements and subsequently signed a written confession that had been prepared by the police.

 The Court of Appeals concluded that in light of plaintiff's request for an attorney, and his continued questioning in an atmosphere of "psychological pressure to confess," his statements and confession could not be considered "voluntary" within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At plaintiff's retrial, where none of this evidence was used, he was again found guilty of robbery. His conviction was affirmed without opinion, 69 A.D.2d 1022, 415 N.Y.S.2d 315 (App.Div. Second Dept.), and leave to appeal was denied by the Court of Appeals, 47 N.Y.2d 906, 419 N.Y.S.2d 1032, 393 N.E.2d 494 (1979). *fn2"

 In order to be awarded relief in a civil rights action, a plaintiff must establish two elements: first, that a particular defendant has caused a deprivation of a right guaranteed by the federal constitution, and second, that that person acted under color of State law. See Gomez v. Toledo, 446 U.S. 635, 639, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572 (1980). There is no question here that defendants could be considered State actors. The Court will therefore review the record to determine the particular involvement in the complained of events, if any, of the defendants named in this action. Thereafter, our approach must be to isolate the precise constitutional violation that could be alleged under a liberal reading of the complaint. See Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). This threshold inquiry is necessary because 42 U.S.C. ยง 1983 empowers this Court to award damages only for deprivations of rights secured by the federal constitution. Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979).

 Turning first to defendant Kilbride, on December 20, 1973, he was patrolling in a squad car when he heard a radio bulletin announcing a robbery and describing the two men who had fled in a gold Cadillac. Kilbride spotted the car and followed it to a house where Larry Davis was taken into custody.

 When the police learned from Davis that plaintiff appeared to be involved in the robbery, defendant O'Connor left for Davis' house, where plaintiff rented a room. Plaintiff was not there, but O'Connor found belongings of his that fit the precise description of the robber given by the pharmacy owner.

 Later that evening plaintiff voluntarily appeared at the police station and was first met by O'Connor, who was on duty in the front office. O'Connor escorted plaintiff upstairs to an interrogation room and immediately returned to the office downstairs. O'Connor's sworn affidavit states that he was totally ignorant of plaintiff's request for an attorney and the attempts made upstairs to contact the mosque. He denies that he was present during the interrogation and only saw plaintiff again when an officer produced him and requested that O'Connor take down the statement plaintiff was then prepared to make.

 Plaintiff, in response to this showing on the motion for summary judgment, asserts no more than that at the original hearing on the motion to suppress, O'Connor testified that he had attempted to telephone the mosque and knew of plaintiff's request for an attorney. The Court's independent review of O'Connor's testimony at that hearing, however, reveals that he maintained then, as he does now, that he was totally ignorant of the request for counsel. This assertion is thus insufficient to raise a genuine issue as to whether O'Connor knowingly took a statement in violation of plaintiff's Miranda rights. Otherwise, plaintiff's response to the motions is wholly limited, as is the complaint, to conclusory assertions that his rights have been denied. *fn3"

 We turn next to the critical question of whether this conduct could amount to a deprivation of a federal constitutional right. Since the events at the station house took place while plaintiff was in custody but well before judicial proceedings had been initiated, plaintiff's Sixth Amendment right to counsel is not implicated in this case. Carvey v. LeFevre, 611 F.2d 19, 21 (2d Cir. 1979). Rather, the constitutional guarantee that could be at issue here is plaintiff's Fifth and Fourteenth Amendment privilege against self-incrimination as interpreted in Miranda and its progeny.

 The Fifth Amendment, made applicable to the States through the Fourteenth Amendment, guarantees that

"no person ... shall be compelled in any criminal case to be a witness ...

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