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
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)).
A. NEGLIGENCE, ASSAULT AND BATTERY AND FALSE ARREST CLAIMS
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 ...