The opinion of the court was delivered by: Nickerson, District Judge.
Plaintiff Willa Reid brought this action under 42 U.S.C. § 1983
against the City of New York (the City) and three
uniformed New York city police officers. The second amended
complaint alleges that defendants violated her rights under the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments by
assaulting, falsely arresting, and maliciously prosecuting her.
The second amended complaint also asserts pendent state law
claims. Jurisdiction is based on 28 U.S.C. § 1343(a)(3).
Defendants move for partial summary judgment. The motion
seeks to dismiss (1) all Federal and State law claims against
all defendants to the extent the claims are for false arrest
and malicious prosecution, (2) the Federal and State claims
for assault against the City and defendant Police Officer
George Farley and (3) the State law claims for assault against
the other two police officer defendants, Richard Dorsty and
Defendants Dorsty and Rohan have not moved to dismiss the
Federal claims against them in so far as they claim an
Many of the facts are undisputed. Where there is
disagreement, the court adopts plaintiff's version for
purposes of the motion.
On the morning of February 21, 1987, defendant George Farley
and two other police officers, not named as defendants,
responded to a complaint made by Faye Lewis. She claimed that
her boyfriend Wayne Aljoe had assaulted her and abducted their
child. The officers, joined by defendant Dorsty met Lewis in
Jamaica, Queens, and proceeded to Aljoe's residence, a two
story single family house, where they met plaintiff Willa
Reid, the mother of Aljoe. Lewis and three officers walked
into a bedroom, as did plaintiff, holding the Lewis' baby in
her arms. She put the baby down on one of the two beds. Lewis
picked up the child and began to gather the baby's things.
Aljoe, 250 pounds and over six feet tall, entered the room.
He went over to the dresser, took a "baby wipe," and sat down
on a bed. One of the officers commented, "Let's get him boys."
As they walked over to arrest him, plaintiff turned her head
away "to avoid seeing the handcuff going on." At that point,
Lewis cried, "Don't do him like that — he didn't do anything
— Leave him alone."
Plaintiff testified at her deposition that she saw Aljoe
fall and the officers hitting him with their hands. When
plaintiff began to cry, one of the officers "in a calm way"
asked her to leave the room. She refused and two officers
continued to hit Aljoe.
An officer, apparently defendant Dorsty, came into the room,
his nightstick raised. Plaintiff begged him not to hit Aljoe.
She rushed between Dorsty and Aljoe, and stood in front of
Dorsty waiving her arms. Dorsty grabbed her by the hair,
pushed her over onto the bed, and shoved her head into the
mattress. She attempted to get up. After several seconds, he
let her go and stepped back. When she looked up, she realized
more officers, including defendant John Rohan, had arrived.
Plaintiff pushed herself up from the bed, went over to
Dorsty and asked to see his badge number. One officer,
apparently Rohan, grabbed the back of her dress and pulled her
back. As she turned and faced him, he slapped her on the
cheek, but not with a hard blow. She responded by slapping the
officer in the face.
Rohan then grabbed her by the hair, pulling her out of the
bedroom door. A second officer pushed her from behind, and a
third officer helped by dragging her by the dress. She was
pushed into the wooden stair railing, dragged into another
bedroom, and pushed down onto a bed. Several minutes later,
Rohan took her down the stairs to the police station.
Defendant Farley states in his affidavit that during much of
the incident he was struggling to handcuff Aljoe and that,
when Aljoe was finally in custody, the plaintiff was no longer
in the room.
a) False Arrest and Malicious Prosecution Claims
To prove a constitutional violation under 42 U.S.C. § 1983
for false arrest and malicious prosecution, plaintiff must
establish the elements of the state law torts of false arrest
or malicious prosecution and show that the defendants were
acting under color of state law. See Raysor v. Port Authority
of New York and New Jersey, 768 F.2d 34, 40 (2d Cir. 1985),
cert. denied 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337
The elements of a false arrest claim are that 1) a defendant
intended to confine the plaintiff, 2) plaintiff was conscious
of the confinement and did not consent to it, and 3) the
confinement was not otherwise privileged. See Broughton v.
State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310,
314 (1975), cert. denied ...