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July 31, 1990


The opinion of the court was delivered by: Robert J. Ward, District Judge.


Plaintiff, Walter Dukes ("Dukes"), an attorney appearing pro se, brought this action under 42 U.S.C. § 1983 and 1985 seeking redress for alleged violations of his constitutional rights. Dukes contends, inter alia, that defendant police officers Thomas Dowd ("Dowd") and Carlos Gomez ("Gomez") arrested and imprisoned him without probable cause, that Dowd and Gomez utilized excessive force in effecting his arrest, that his arrest, prosecution and conviction were the product of a conspiracy among Dowd, Gomez and others to deprive him of his rights, and that Dowd gave perjured testimony at his criminal trial which resulted in his conviction. In addition, Dukes seeks to hold the City of New York (the "City") liable for the actions of the defendant police officers.

Dowd, Gomez and the City (collectively the "municipal defendants"), move for partial summary judgment pursuant to Rule 56(b) and (d), Fed.R.Civ.P., on the claims of unlawful arrest and imprisonment, malicious prosecution, conspiracy, and perjury at Duke's criminal trial. The claims alleging excessive use of force, on which disputed issues of fact exist, are not included in this motion. Dukes, in response, filed a cross-motion seeking, inter alia, partial summary judgment from the municipal defendants. For the reasons that follow, the municipal defendants' motion is granted and Dukes' cross-motion is denied.


The groundwork for this action was laid in a landlord tenant dispute involving, Robin Renaud ("Renaud"), a friend of Dukes who lived in a rooming house located at West 158 Street in Manhattan, and Lavonne Scruggs ("Scruggs"), the owner of the rooming house. A controversy arose over whether Dukes had moved in with Renaud, who lived in a room on a floor reserved for women. A confrontation between Renaud and Scruggs ensued and resulted in Scruggs filing a criminal complaint, on or about October 18, 1984, charging Renaud with assault in the third degree and harassment. At that time, a temporary order of protection was issued barring Renaud from harassing Scruggs.

After this initial legal sparring, Scruggs filed a criminal complaint on January 24, 1985, charging Dukes with menacing, refusing her access to Renaud's room to make repairs, and harassment. She alleged that on January 23, 1985, she attempted to gain access to clean and repair the room in which Dukes was staying, but he refused her access and threatened her with a machete. Upon Scruggs' complaint, a temporary order of protection was issued which ordered Dukes to refrain from harassing, intimidating, threatening, or otherwise interfering with Scruggs.

On the morning of January 25, 1985, the order of protection was served on Dukes by Scruggs, accompanied by police officers Dowd and Gomez. Dukes was served in Renaud's room in the rooming house at West 158th Street. Later that morning, Dowd and Gomez returned to the rooming house in response to a radio call of a dispute. Scruggs informed them that Dukes had struck her in violation of the order of protection. Plaintiff was thereupon arrested and charged with criminal contempt and assault.

Upon a prosecutor's information, plaintiff was charged in connection with the incidents which occurred on January 23 and January 25, 1985. The information charged Dukes with the following four crimes: (1) menacing in violation of New York State Penal Law § 120.15, (2) harassment in violation of New York State Penal Law § 240.25, (3) assault in the third degree in violation of New York State Penal Law § 120.00 and (4) criminal contempt in the second degree in violation of New York State Penal Law § 215.50.

A jury trial on these charges took place on August 13 and 14, 1985, before Judge Alan Meyer of the Criminal Court of the City of New York. At the trial, Scruggs, Dowd, Renaud, Dukes and Michael Gene Person, a tenant at the rooming house, testified as to the events in question. In his testimony, Dukes denied each of the charges against him, specifically claiming that he was not in the rooming house on January 23, 1985 when Scruggs alleged he threatened her with a machete, that he was never served with the order of protection on January 25, 1985, and that he had no contact with Scruggs on January 25, 1985 prior to his arrest.

The jury found Dukes guilty of assault in the third degree and criminal contempt in the second degree, the charges stemming from his conduct on January 25, 1985, but acquitted him of menacing and harassment, the charges stemming from the January 23, 1985 incident. As a result of his conviction, Dukes was sentenced to three years probation.

Dukes appealed his conviction, filing appellate briefs both pro se and via counsel, arguing, inter alia, that he was arrested without probable cause and that his conviction was obtained as a result of perjured testimony from a number of witnesses. By order dated June 29, 1988, the Supreme Court Appellate Term unanimously affirmed the conviction.

Dukes commenced the instant action on or about June 11, 1986. In a Memorandum Decision dated February 17, 1987, the Court dismissed claims asserted against Robert M. Morgenthau, District Attorney of New York County, and Collis White, an Assistant District Attorney.*fn1 The Court found that the conspiracy allegations leveled at these defendants were impermissibly vague and conclusory and thus, failed to state a claim for relief. The remaining claims were found to be barred because the defendant prosecutors were protected by absolute immunity.

Dowd, Gomez and the City now move to dismiss most of the claims against them on the grounds that Dukes' criminal conviction bars him from relitigating the lawfulness of his arrest, prosecution, or imprisonment, and that the conspiracy allegations are insufficient to support a claim for relief. In addition, Dowd argues that he is ...

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