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March 2, 1992

CURTIS JUDGE, Plaintiff, against THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and "JOHN DOE," a Fictitious name intended to represent a police officer of the Police Department of the City of New York whose identity is unknown, Defendants.


The opinion of the court was delivered by: CHARLES H. TENNEY

TENNEY, District Judge

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his civil rights during the course of his arrest and incarceration. Defendants now move for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted.


 Plaintiff Curtis Judge ("Judge") alleges the following facts surrounding his arrest on December 13, 1991, *fn1" by a plainclothes New York City police officer at a pharmacy located at 282 Lenox Avenue in New York City. Deposition of Curtis Judge ("Judge Dep.") (taken on May 11, 1990) at 9; Complaint P5.

 On the afternoon of December 13, 1991, Judge entered a pharmacy located at 282 Lenox Avenue, to fill a prescription for antibiotic cold medication. Affidavit of Curtis Judge ("Judge Aff.") (sworn to Oct. 17, 1991) P4, Ex. A. While waiting for the prescription to be filled, he walked into a nearby coffee shop where he got something to eat, and then returned to the pharmacy. Id. Upon re-entering the pharmacy, Judge was suddenly pushed up against the door with his hands pinned behind his back, thrown to the floor, and hit several times over the top of his head with a pistol. Id. P 5-6; Judge Dep. at 41-44, 60-63, 68-69. Judge was then picked up off the floor, handcuffed, and placed in a police car. Judge Aff. P 8. Judge's assailant was a plainclothes New York City police officer who was later identified as John Byrnes. *fn2" The only witnesses to the incident, were the pharmacist and his assistant. Id. P 8.

 Officer Byrnes and another officer then transported Judge to a precinct station on the east side of Manhattan. See Judge Aff. P8-9. Judge alleges that on the way to the station, no one explained to him why he was being arrested or what his rights were. Id. P 10. In addition, Judge alleges that while in the police car, Officer Byrnes "made some vulgar remarks to [him] in the nature of racial slurs against black people." Id. P 10.

 After they arrived at the precinct station, Judge requested medical attention because his head was bleeding. Id. P 11; Complaint P7,8; Judge Dep. at 57. Officer Byrnes, however, denied his request, telling him that "it would just delay the process of . . . getting out of jail." Judge Aff. P11; Judge Dep. at 57. Judge was kept at the precinct station for approximately four to six hours. Judge Aff. P11.

 Judge was then transported to One Police Plaza, during which time Officer Byrnes continued to be verbally abusive. Id. P 12; Judge Dep. at 75. Although in need of medical attention, Judge states that he did not ask for any because he was afraid -- based on what Officer Byrnes had told him -- that doing so would merely prolong his detention. Judge Dep. at 74-76. Judge was then transported to Rikers Island Detention Facility ("Rikers"). Complaint P9. While at Rikers, Judge was given Methadone to allay the drug-related withdrawal symptoms he was experiencing. *fn3" Judge Dep. at 77, 82-84. Judge also received a physical examination, but at no time did he complain of or request medical attention for the injuries to his head. Id. at 77-78, 82-84.

 After four to five days at Rikers, Judge was released from custody on bond. Complaint P10; Judge Dep. at 76-77. On December 19, 1982, Judge went to the Emergency Room of St. Luke's-Roosevelt Hospital ("St. Luke's") to seek medical treatment for his head injury, which was causing him to experience headaches and some hearing loss. Judge Aff. P14. After receiving a physical examination and having X-rays taken, Judge was told by the Emergency Room doctor that he had fractured his skull. *fn4" Id. P 14, Ex. B. Judge remained at St. Luke's for approximately twenty-four hours. Id.

 On December 20, 1982, Judge appeared in the New York City Criminal Court before the Honorable Judge Lang, where he learned that he had been arrested for and charged with the sale of a controlled substance. Judge Dep. at 84-85. Judge Lang then dismissed all pending charges against Judge. Complaint P10; Judge Dep. at 84-85.

 On December 16, 1985, Judge commenced this action against the City of New York, the Police Department of the City of New York, and "John Doe," a police officer. In his complaint, Judge alleges that the events surrounding his arrest and incarceration violated his civil rights in contravention of 42 U.S.C. § 1983. Judge also alleges that the conduct of "John Doe" -- i.e., effectuating an allegedly unlawful arrest and engaging in allegedly excessive and unnecessary force -- was part of a widespread and institutionalized custom and practice on the part of the municipal defendants. Complaint P14.


 A court may grant summary judgment if "there is no genuine issue as to any fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Although the burden is on the movant to show that there is no genuine issue of material fact, the movant does not necessarily have to negate every one of the nonmovant's claims, but rather, has only to show that there is an absence of evidence to support the nonmovant's case. See Celotex, 477 U.S. at 325. In deciding a motion for summary judgment, the court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmovant. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348, 1356 (1986). The nonmovant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. Rather, the nonmovant "must set forth specific facts showing that there is a genuine issue for trial. " Fed. R. Civ. P. 56 (e).

 In an action pursuant to 42 U.S.C. § 1983, a municipality may not be held liable for the wrongful conduct of its agents or employees based solely on the theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018, 2037 (1978). To hold municipal defendants liable for the acts of its employees, a plaintiff must prove (1) that the actions in question were the result of an official policy or custom, (2) that this official policy or custom "was the moving force of" his or her injuries, and (3) that the injuries amounted to a violation of his or her constitutional rights. Id. at 691-94. Thus, the core issue in any § 1983 case is "whether there is a direct causal ...

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