The opinion of the court was delivered by: KRAM
MEMORANDUM OPINION AND ORDER
SHIRLEY WOHL KRAM, U.S.D.J.
The above-captioned action is before this Court upon the motion by defendant for judgment in its favor either on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or as summary judgment, pursuant to Rule 56(b). For the reasons stated below, defendant's motion is granted.
Plaintiff Roger Clayton is a citizen of the United States and the State of New York, and is the Black race.
The defendant, the City of New York ("the City"), is a municipal corporation organized under the laws of the State of New York.
This case arises out of an incident which allegedly occurred on September 22, 1979. Plaintiff alleges that on that day, at approximately 3:15 p.m., he was lawfully in his own residence -- a room located at 109 East 9th Street. "Police officers" came to his residence and asked plaintiff to let them in, which plaintiff did. Thereafter, he alleges, the police officers beat him without cause or provocation. Plaintiff alleges that he was beaten unconscious, then handcuffed and taken to the police station. Upon regaining consciousness, plaintiff was allegedly beaten again with "clubs, blackjacks and rubber hoses." Plaintiff was allegedly hospitalized the following evening.
On September 24, 1979, plaintiff was arraigned on charges of criminal trespass, criminal mischief, sexual abuse, possession of burglarly tools, menacing, and resisting arrest. Plaintiff was release on his own recognizance after arraignment. The charges were dismissed in Criminal Court, New York County on January 22, 1980.
On March 10, 1982, plaintiff filed the complaint in this action, alleging that the beating was racially motivated and a deprivation of his civil rights under color of law in violation of 42 U.S.C. § 1983.* Plaintiff did not name any of the police officers as defendants herein; the City was named as the sole deffendant.
On March 18, 1982, plaintiff filed an amended complaint ("the first amended complaint") which included an allegation that a Notice of Claim had been served on the City. Apart from the added reference to the Notice of Claim, the first amended complaint was identical to the original complaint.
In November, 1982, the City moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the theory that the first amended complaint sought to hold the City liable on a theory of respondeat superior and was therefore legally insufficient to state a claim upon which relief could be granted under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (holding that municipalities are not liable for acts of their employees solely on theory of respondeat superior).
In response to that motion, on November 29, 1982, plaintiff filed, among his opposition papers, a further amended complaint ("the second amended complaint"). As a basis for the filing of the second amended complaint, plailntiff urged that "Rule 15(a) of the Federal Rules of Civil Procedure provides tht the privilege to amend is freely afforded the plaintiff." Plaintiff further argued that he was "prepared to demonstrate that the actions of the law enforcement officers . . . were part of a general practice of the police officers of the City of New York, when dealing with minority persons such as black men." Specifically, plaintiff's second amended complaint alleges:
That the police officers and other law enforcement officers deprived the plaintiff of his civil rights as hereinabove stated, pursuant to a long established custom of law enforcement officers in the City of New York, to violently injure and destroy the civil rights of Black men as a policy of intimidation, and with the expectation of enforcing order and preventing protest. That the responsible officials of the City of New York, including the Mayor and Police Commissioner, did ...