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
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).
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
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
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
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 ...