The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
Plaintiff Christopher Haile brought this action against the Village of Sag Harbor ("Sag Harbor") and several of its police officers ("the Sag Harbor defendants") and the Town of Southampton ("Southampton") and several of its law enforcement officers ("the Southampton defendants") asserting a variety of claims under the federal civil rights laws as well as pendent state law claims. The action is before the Court on the motion of the Southampton defendants to dismiss plaintiff's claims against them for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and/or for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, defendants' motion will be granted in part and denied in part.
Plaintiff was arrested in the early morning on August 25, 1984 in the Village of Sag Harbor. Plaintiff's claims against the Southampton defendants stem from plaintiff's allegation that this arrest was carried out with excessive force, specifically, that his jaw was broken. Defendants' motion to dismiss these claims is divided into six parts. The Court will address each aspect of this motion in turn.
I. The Individual Defendants
Plaintiff has named as defendants twenty-one (21) police officers and fire marshals who were employed by Southampton on the date of his arrest. Each of these defendants has moved for dismissal. On the basis of their log entries for the evening in question, eighteen (18) of these defendants assert that they were not present at the time of plaintiff's arrest. The three remaining defendants assert that they were present for some of the time while plaintiff was being arrested but were not involved in that arrest nor in the use of any excessive force that may have taken place. In addition, defendants have identified a fourth officer, not sued by plaintiff, who was present at the scene.
With respect to the eighteen defendants who allege that they were not present during plaintiff's arrest, the Court finds, as it stated at oral argument, that they should be dismissed as defendants. In initiating this action, plaintiff named as defendants all of the law enforcement personnel employed by Southampton who were on duty at the time of his arrest. Although plaintiff concedes that only some of these officers were present at the time, plaintiff adopted this litigation strategy because he did not know the identity of those officers who are alleged to have taken part in his arrest. In response to this blunderbuss approach, defendants have attempted to identify those who would not possibly have done any wrong to plaintiff because of their absence from the scene. Insofar as the number of officers who have admitted their presence roughly accords with plaintiff's recollection, the Court will assume for purposes of this motion that Southampton's attempt to identify potential defendants has been made in good faith and will dismiss the others. This dismissal is without prejudice; should the discovery process, including the depositions of these officers if the plaintiff so desires, uncover evidence that any of them were involved in the violation of plaintiff's rights, plaintiff may restore them as defendants. In the absence of such evidence, however, the Court concludes that justice would not be served by retaining each and every officer as a party to this action.
At the same time, the Court will deny the motion to dismiss the defendants who admittedly were present at the scene of plaintiff's arrest. Because defendants' motion relies on affidavits, the Court is obliged to treat it as a motion for summary judgment. Fed. R. Civ. P. 12(b). In light of the fact that little or no discovery has been taken, the Court finds that summary judgment is premature. Fed. R. Civ. P. 56(f). Moreover, even assuming the truth of defendants' statements to the effect that they did not use excessive force, plaintiff has cited authority for the proposition that law enforcement officers have a duty to intervene when fellow officers use excessive force against a detainee. See, e.g., Ware v. Reed, 709 F.2d 345, 353 (5th Cir. 1983). Defendants attempt to distinguish Ware by arguing that, in the circumstances of this case, some force was legitimately used and the defendants had a countervailing duty to assist the arresting officers. Whether or not this is a convincing legal argument, it depends on factual assumptions contrary to plaintiff's allegations, thus underscoring the inappropriateness of summary judgment at this stage of the litigation.
II. The Conspiracy Claims
Plaintiff's third and fourth causes of action claim violations of 42 U.S.C. § 1985(3) and 42 U.S.C. § 1986, respectively. Section 1985(3) provides in pertinent part:
If two or more persons . . . conspire . . . for the purpose of depriving . . . any person . . . of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
A cause of action under this section has four elements: (1) a conspiracy; (2) for the purposes of depriving any person of equal protection of the laws or of equal privileges and immunities; (3) an act in furtherance of the conspiracy; (4) an injury to person or property or deprivation of a right or privilege. Carpenters v. Scott, 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971).
In addition to the requirements just stated, there must be "some racial . . . invidiously discriminatory animus behind the conspirator's action." Griffin, supra, 403 U.S. at 102 (footnote omitted). To meet this requirement, plaintiff, who is white, puts forth the following theory: plaintiff was arrested after attending a Tina Turner concert, whose audience, plaintiff contends, was racially integrated. Plaintiff alleges:
Defendants . . . acted out of a racial animus directed against Blacks and against all persons who participate in racially integrated ...