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LINDSEY v. LOUGHLIN

August 13, 1985

MELVIN LINDSEY, Plaintiff, against RAYMOND J. LOUGHLIN, Defendant


ORDER

McLaughlin, District Judge.

The attached Report and Recommendation of Hon. Shira A. Scheindlin, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

 It is hereby ORDERED that defendant's motion for summary judgment dismissing the Complaint is granted.

 The Clerk shall make copies of this Order and shall serve them upon the parties.

 SO ORDERED.

 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

 I. STATEMENT OF FACTS.

 Plaintiff, Melvin Lindsey, appearing pro se, has brought this 42 U.S.C. § 1983 action alleging a violation of his civil rights, based upon the following incident. On July 1, 1980 defendant Police Officer Raymond Loughlin observed an expensive looking late model Lincoln Continental with out of state license plates parked near an area known to be frequented criminals reselling stolen luxury automobiles. Affidavit of Loughlin at 1. At the time of defendant's observation he was assigned to the Grand Larceny Automobile Squad of the 44th Precinct. Defendant's main assignment was the recovery of stolen automobiles. Affidavit of Loughlin at 1.

 Upon checking the automobile's license plates by using a computer terminal within the police car, defendant learned that the license plates belonged to a 1964 Chrysler. Defendant then read the vehicle identification number of the automobile and learned that the automobile had been reported stolen some months earlier. Defendant waited and continued to observe the automobile until plaintiff returned, entered the car, and began to drive away. Officer Loughlin then stopped plaintiff and a search of his person revealed both the keys to the automobile and a loaded pistol. Affidavit of Loughlin at 1. Plaintiff was arrested and charged with criminal possession of stolen property, unauthorized use of a vehicle, and criminal possession of a weapon. After trial, the jury found plaintiff guilty of criminal possession of a weapon but returned a verdict of not guilty on the other charges. Defendant's Exhibit C. Plaintiff was sentenced to serve a minimum of two and one half years in prison. Defendant's Exhibit A.

 Plaintiff alleges, as a basis of his cause of action, that defendant's statements at trial indicated that defendant's "investigation came about because the luxury auto in that location of the Bronx was out of place being it is considered a poor neighborhood." Complaint at 4. Plaintiff also alleges, as a separate basis for his cause of action, that defendant made statements that "were prejudice [sic] in nature, and clear deformation [sic] of my character." Complaint at 4. It is unclear whether plaintiff alleges that defendant's statements were made at trial or at the time of the arrest.

 Plaintiff first filed the complaint in 1982 while still a prisoner. In early 1984, after receiving leave of the court to proceed in forma pauperis, the complaint was served on defendant. During this time plaintiff was released from prison and contacted the court to report his new address and to reaffirm his interest in the action. Plaintiff's letter of March 12, 1984. Since contacting the court in March 1984, no correspondence has been received from plaintiff. Further, plaintiff has failed to appear for any of the three status conferences scheduled for April 11, 1985, May 7, 1985, and May 14, 1985, even though written notification was sent to plaintiff's last known address in advance of each conference.

 On March 4, 1985 defendant made a motion for summary judgment pursuant to Fed.R.Civ.P. 56. In support of the motion defendant argued that probable cause existed at the time of plaintiff's arrest. Defendant also argued that he was entitled to a good faith defense even if probable cause was found to be lacking. No response to the summary judgment motion has been received from plaintiff. Once again, attempts were made by this court to notify plaintiff at his last known address of the motion return date, both by letter and by telephone. The court was unable to reach plaintiff.

 II. DISCUSSION

 It is respectfully recommended that defendant's motion for summary ...


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