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December 10, 1991


The opinion of the court was delivered by: Wexler, District Judge.


Plaintiff Richard Cox brings this action for alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 and for pendent state claims against the County of Suffolk ("County"), the Suffolk County Police Department ("Police Department"), and Suffolk County police officers Thomas A. Ingald, David Maddox, Arthur Ahl and Gail Schaarschmidt ("police officers"). This Court's jurisdiction is based on 28 U.S.C. § 1331, 1332, 1343 and pendent jurisdiction. Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed below, the motion is granted in part and denied in part, with leave granted to all parties to replead after the completion of discovery.


According to Cox's complaint and affidavit, he and Ronnie Christian, an acquaintance of three or four years, were out-of-state workers for the New York Telephone Company who, in the fall of 1989, were lodged together at the South Bay Motel in Copiague, New York. Before dawn, on December 2, 1989, Christian, who is much larger and stronger than Cox, brought a young woman back to their room where Cox had been asleep. Over Cox's verbal protests, Christian proceeded to brutally assault and repeatedly rape the woman. Further, by the use of threatening words and behavior directed at the woman and at Cox, Christian twice compelled the woman to perform acts of oral sodomy with Cox. Finally, after raping the woman yet again, Christian fell asleep. Cox then told the woman to discontinue her sexual act with him, and to dress and leave the motel room. Cox remained in the room and went back to sleep. At approximately eight o'clock in the morning he was awakened by the police, arrested and charged with sodomy in the first degree, a Class B felony.

Cox alleges that when he was first taken into custody he was told by a female officer that the police had spoken with the complaining witness (the rape victim), that they knew Cox was not responsible for the attack, and that they just wanted to take his statement. Moreover, by 9:18 a.m. the complaining witness had completed a three page written statement for the police which stated in relevant part: "I think [Cox] wanted no part [of the oral sodomy] but I could tell he was really scared of [Christian]".

Nevertheless, Cox alleges that while he was being questioned at the police station that same day, he was kicked once or twice in the leg by an unidentified plainclothes police officer. He further alleges that when he was arraigned the following day in Suffolk County District Court, a NYSIIS report of a Richard J. Cox, who was born in the same month and year as plaintiff, was presented as plaintiff's prior criminal record. Partly as a result of Richard J. Cox's prior criminal record, plaintiff's bail was set at $250,000, which he could not meet.

On December 11, 1989, Cox was indicted on the sodomy charge by the Grand Jury of Suffolk County and Richard J. Cox's NYSIIS report was again presented to the Court at plaintiff's bail hearing. Bail remained at $250,000 and, as a result, he remained in custody for more than 90 days.

On March 22, 1990, the Suffolk County District Court, after an in camera review of the December 11, 1989 Grand Jury minutes, dismissed the indictment. Cox clearly showed "that the evidence before the Grand Jury, if unexplained and uncontradicted, would not warrant a conviction by a trial jury" because Cox was an unwilling participant in the oral sodomy and therefore lacked the mens rea to commit sodomy in the first degree. People v. Christian and Cox, unpublished Memorandum and Decision, County Court, Suffolk County, Indictment Number 2093-89, March 22, 1990.

Plaintiff lists 5 causes of action in his complaint: (1) deprivations of his Constitutional Rights under the Fourth, Fifth and Fourteenth Amendments based upon false arrest, malicious prosecution, and the use of excessive force by police officers, all in violation of 42 U.S.C. § 1983; and pendent state actions for (2) negligence; (3) assault and battery; (4) false arrest; and (5) malicious prosecution.


A party seeking summary judgment has the burden to establish that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). In determining a motion for summary judgment all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment 'may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).


The parties have agreed that plaintiff's second, third and fourth claims (the pendent state claims for negligence, assault and battery, and false arrest) are barred by New York's notice of claim provisions and its statute ...

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