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June 13, 1990


The opinion of the court was delivered by: William C. Conner, District Judge:


Plaintiff Allen Hodge, an inmate at the Auburn Correctional Facility in Auburn, New York, brings this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his eighth and fourteenth amendment rights. Plaintiff seeks compensatory and punitive damages against defendants Officers Israel Colon and Madeline Ruperto, Sergeant Thomas Punell of the 43rd precinct, unnamed police officers and police assistants of the 43rd Precinct ("John Does"), William Conroy, Patrick Murphy, Robert McGuire, Edward I. Koch, and the City of New York ("City"). This action is currently before the Court on the motion of certain defendants*fn1 to dismiss the second amended complaint pursuant to Rule 12(c) or 56, Fed.R.Civ.P. Certain defendants also claim that service upon them violated Rule 4(j), Fed.R.Civ.P. For the reasons stated below, defendants' motion is granted in part and denied in part.


Plaintiff was arrested on February 11, 1983 at 10:00 p.m. in the Bronx by Officers Ruperto and Colon in connection with a series of crimes for which plaintiff was ultimately convicted and is currently serving his sentence. Officers Ruperto and Colon brought plaintiff to the 40th precinct, to which they were assigned, for post-arrest processing, to Lincoln Hospital for x-rays, to Central Booking for photographs and fingerprints, and finally to the 43rd precinct for pre-arraignment detention. Plaintiff claims that his eighth and fourteenth amendment rights were violated because 1) he was detained for two-and-one-half days at the 43rd precinct in an overcrowded, unsanitary and cold cell prior to his arraignment, 2) he was denied necessary medical treatment, and 3) he was not allowed to contact his family or his lawyer.


1. Standard For Judgment on the Pleadings

The moving defendants move for judgment on the pleadings, or in the alternative, for summary judgment on plaintiff's claims. Although both parties have submitted some matters outside the pleadings, the court has disregarded them because, to this Court's knowledge, little or no discovery has been conducted in this action.

Judgment on the pleadings is appropriate where the material facts are undisputed and where a judgment on the merits is possible merely upon consideration of the pleadings. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2nd Cir. 1988). The standards governing judgment on the pleadings under Rule 12(c) are the same as those governing a motion to dismiss under Rule 12(b)(6). See George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2nd Cir. 1977). The Court must accept as true all the well pleaded facts of the complaint and may not dismiss the action unless the court is convinced that the plaintiff can prove no set of facts which would entitle him to relief. See Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57 (2nd Cir. 1985); Dahlberg v. Becker, 748 F.2d 85, 88 (2nd Cir. 1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985).

2. Section 1983 Claims

A. The City

In order to prevail under 42 U.S.C. § 1983, a plaintiff must prove that 1) he was deprived of a right secured by the federal Constitution, or by federal law and 2) the defendant acted under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Green v. Maraio, 722 F.2d 1013, 1016 (2nd Cir. 1983). Because several of plaintiff's claims fail to allege a violation of a constitutional or federal statutory right, these claims must be dismissed.

The second amended complaint alleges that "at or about the time of Hodge's pre-arraignment detention, there existed a practice or policy at NYPD of holding arrestees for unnecessarily long periods of time prior to arraignment." Second Circuit case law, however, establishes that a two-and-one-half-day detention, as occurred in the present case, is not unconstitutional. Williams v. Ward, 845 F.2d 374 (2nd Cir. 1988), cert. denied, 488 U.S. 1020, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989) (upholding a seventy-two hour pre-arraignment detention period). Plaintiff also alleges an unconstitutional City policy whereby "arrestees were often sent back and forth between precincts and Central Booking." However, officers Colon's and Ruperto's actions in taking plaintiff to the 43rd precinct for pre-arraignment detention also involve no constitutional violation. Williams v. Ward, 845 F.2d 374; Figueroa v. Kapelman, 526 F. Supp. 681 (S.D.N.Y. 1981). Plaintiff furthermore alleges that pursuant to practice and policy, "arrestees were not allowed to contact their families, friends, or their attorneys during pre-arraignment detention." However, as defendant argues and plaintiff concedes, there is also no constitutional requirement that a detainee be permitted a telephone call upon completion of booking formalities. See State Bank of St. Charles v. Camic, 712 F.2d 1140, 1145 (7th Cir. 1983), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); see also O'Hagan v. Soto, 725 F.2d 878 (2nd Cir. 1984). As a matter of law, these allegations fail to state a claim upon which relief can be granted and are therefore dismissed.

Pre-arraignment detainees are, however, entitled to "adequate food, clothing, shelter, sanitation, medical care, and personal safety." See Lareau v. Manson, 651 F.2d 96, 106 (2nd Cir. 1981); see also Robles v. Coughlin, 725 F.2d 12, 15-16 (2nd Cir. 1983). Plaintiff has therefore stated a claim for violation of his fourteenth amendment rights by his allegations that he was not provided any food or water during his two-and-one-half days of confinement, that he had to sleep on a steel frame without a mattress, that the sanitation facilities were so filthy he was unable to use them and that he was denied access to necessary medical care.

It is well established, however, that a municipality or municipal agency may not be held liable pursuant to section 1983 for the alleged wrongful conduct of its employees based solely on a theory of respondeat superior. Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); Turpin v. Mailet, 619 F.2d 196, 199 (2nd Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). A plaintiff must plead and prove that the actions at issue were caused by an official agency policy or practice which resulted in the ...

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