probable cause to arrest Cox; consequently, they are entitled
to qualified immunity for the arrest.
b. Malicious Prosecution
It is well-established that a claim for malicious
prosecution can form the basis for liability under 42 U.S.C. § 1983.
Raysor v. Port Authority of New York & New Jersey,
768 F.2d 34, 39 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 106
S.Ct. 1227, 89 L.Ed.2d 337; Russo v. New York, 672 F.2d 1014,
1018 (2d Cir. 1982), modified on other grounds, 721 F.2d 410
(1982). Moreover, even when probable cause is present at the
time of arrest, evidence could later surface which would
eliminate that probable cause. "If probable cause were no
longer present at the time of the arraignment or indictment,
malicious prosecution might then lie." Oakley v. City of
Rochester, 71 A.D.2d 15, 421 N.Y.S.2d 472, 474 (4th Dept.
1979), aff'd, 51 N.Y.2d 908, 434 N.Y.S.2d 977, 415 N.E.2d 966
Within a few hours of Cox's arrest, both he and the
complaining witness submitted written statements which clearly
indicate that Cox's participation in oral sodomy with the
complaining witness was involuntary and entirely due to
Christian's use of force and threats. There was no evidence to
the contrary. Nevertheless, defendants proceeded to arraign
and indict Cox on charges of sodomy in the first degree. As
stated above, the Suffolk County District Court dismissed the
indictment, finding that the evidence submitted to the Grand
Jury clearly showed that Cox, as an unwilling participant in
the sodomy, lacked the mens rea to commit sodomy in the first
Viewing the facts in the light most favorable to the
plaintiff, as the Court must under a motion for summary
judgment based on qualified immunity, Waldrop v. Evans,
871 F.2d 1030, 1035 (11th Cir. 1989), the Court holds that it was
objectively unreasonable for the police officers to believe
that they had probable cause to prosecute Cox. Consequently,
they are not entitled to qualified immunity for their acts in
prosecuting Cox after they received the complaining witness'
written statement. See Torres Ramirez v. Bermudez Garcia,
898 F.2d 224, 228 (1st Cir. 1990).
Defendants' other arguments regarding the § 1983 claim based
on malicious prosecution are also to no avail. They note that a
district attorney is entitled to absolute immunity in
prosecuting a felony charge, Imbler v. Pachtman, 424 U.S. 409,
431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976) and that Suffolk
County would not be liable under § 1983 for any wrongdoing by a
district attorney in grand jury proceedings. Baez v. Hennessy,
853 F.2d 73, 77 (2d Cir. 1988) cert. denied, 488 U.S. 1014, 109
S.Ct. 805, 102 L.Ed.2d 796 (1989). These statements are true,
but they are also irrelevant; none of the defendants in this
case is a district attorney and the County does not and cannot
claim that it has immunity for the actions of its police
officers. Nor will the role of the district attorney
necessarily shield police officers who act as complaining
witnesses from liability for malicious prosecution. White v.
Frank, 855 F.2d 956, 962 (2d Cir. 1988).
In addition, defendants state that grand jury testimony is
never given under color of law, Briscoe v. LaHue, 460 U.S. 325,
103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and that such testimony
is, in any event, the subject of absolute immunity. San Filippo
v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 256 (2d Cir.
1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d
797 (1985). However, they fail to recognize that Briscoe is
limited to civilian witnesses, Briscoe, 460 U.S. at 329-330,
103 S.Ct. at 1112-1113; San Filippo, 737 F.2d at 256, and that
absolute immunity for grand jury testimony does not apply to a
complaining witness. White, 855 F.2d at 961.
Finally, defendants argue that Cox's § 1983 claim, to the
extent it is based on malicious prosecution, is barred because
his indictment by the Grand Jury on the charge of sodomy in the
first degree is prima facie evidence of probable cause. White,
855 F.2d at 961; Colon v. City of New York, 60 N.Y.2d 78, 468
N YS.2d 453,
455, 455 N.E.2d 1248, 1250, rearg. denied, 61 N.Y.2d 670, 472
N YS.2d 1028, 460 N.E.2d 232 (1983). However, both White and
Colon explain that a plaintiff can still prove a lack of
probable cause if he can show that "the defendant
misrepresented, withheld or falsified evidence." White, 855
F.2d at 962; see Colon, 468 N.Y.S.2d at 455-56, 455 N.E.2d at
At this point in the litigation, Cox has presented no
evidence of any such misconduct on the part of defendants.
Nevertheless, since plaintiff's complaint adequately alleges
the commission of acts that violated clearly established law,
he is entitled to attempt to establish defendants' misconduct
through discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526,
105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Accordingly,
defendants motion for summary judgment as to that portion of
the § 1983 action which is based on malicious prosecution is
denied, with leave granted to replead after the completion of
c. Use of Excessive Force
The use of excessive force during an arrest, an
investigatory stop, or any other seizure of a free citizen
violates that person's Fourth Amendment rights and is
actionable under 42 U.S.C. § 1983. Graham v. Connor,
490 U.S. 386, 388, 109 S.Ct. 1865, 1867, 104 L.Ed.2d 443 (1989). The
standard is objective: were the officers' actions "'objectively
reasonable' in light of the facts and circumstances confronting
them." Id. at 397, 109 S.Ct. at 1872.
When there was no provocation, police officers have been
held liable under § 1983 for the use of relatively minor
physical force against a person in their custody. Bauer v.
Norris, 713 F.2d 408, 410-413 (8th Cir. 1983). The Second
Circuit has held that a "plaintiff may recover even if the
injuries inflicted were not permanent or severe." Robison v.
Via, 821 F.2d 913, 924 (2d Cir. 1987); see Calamia v. City of
New York, 879 F.2d 1025 (2d Cir. 1989); Lewis v. Downs,
774 F.2d 711, 714 (6th Cir. 1985); Norris v. District of Columbia,
737 F.2d 1148, 1150-52 (D.C.Cir. 1984); but see Wisniewski v.
Kennard, 901 F.2d 1276, 1279 (5th Cir.), cert. denied, ___ U.S.
___, 111 S.Ct. 309, 112 L.Ed.2d 262 (1990); Hudson v.
McMillian, 929 F.2d 1014 (5th Cir.) (applying significant
injury test under Eighth Amendment excessive force claim),
cert. granted, ___ U.S. ___, 111 S.Ct. 1579, 113 L.Ed.2d 645
(1991). Moreover, "during interrogation no physical force is
constitutionally permissible." Ware v. Reed, 709 F.2d 345, 351
(5th Cir. 1983).
Cox's affidavit states that during questioning at the police
station he was kicked without provocation by an unnamed
plainclothes officer. Even if this alleged use of excessive
force was random and unauthorized, it would still be a
violation of substantive due process, and therefore if the
plainclothes officer can be identified, Cox would be able to
maintain his § 1983 action against him. Robison, 821 F.2d at
924-25; see Gilmere v. City of Atlanta, Ga., 774 F.2d 1495,
1500 (11th Cir. 1985) (en banc), cert. denied, 476 U.S. 1115,
106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Massop v. Coughlin,
770 F.2d 299, 301 (2d Cir. 1985). However, defendant police
officers are not alleged to have committed or cooperated in
that act and therefore they cannot be liable for it.
Accordingly, defendants' motion for summary judgment as to that
portion of the § 1983 action which is based on the use of
excessive force is granted, with leave granted to plaintiff to
replead after the completion of discovery.
D. STATE CLAIM FOR MALICIOUS PROSECUTION
For the reasons discussed above, this Court denies
defendants' motion for summary judgment as to the pendent
state claim for malicious prosecution. Leave is granted to
replead after the completion of discovery.