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COX v. COUNTY OF SUFFOLK

July 29, 1993

RICHARD COX, Plaintiff,
v.
COUNTY OF SUFFOLK, et al., Defendants.



The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 In March 1991, Richard D. Cox ("Plaintiff") commenced this action against the County of Suffolk, the Suffolk County Police Department, and Suffolk County police officers Thomas A. Ingald, David Maddox, Arthur Ahl and Gail Schaarschmidt, pursuant to 42 U.S.C. § 1983, for alleged deprivations of Plaintiff's Fourth, Fifth, and Fourteenth Amendment rights. Plaintiff also brought related state claims for negligence, assault and battery, false arrest, and malicious prosecution.

 In a Memorandum and Order dated December 10, 1991, this Court granted summary judgment to Defendants on Plaintiff's state claims of negligence, assault and battery, and false arrest, but denied summary judgment on the claim for malicious prosecution. Cox v. County of Suffolk, 780 F. Supp. 103, 109 (E.D.N.Y. 1991). Similarly, the Court granted Defendants' motion for summary judgment on the § 1983 claim to the extent that the claim was based on false arrest, assault and battery, and excessive force, but denied summary judgment to the extent that the claim was based on malicious prosecution. Id. Furthermore, all claims were dismissed against the County of Suffolk and the Suffolk County Police Department on the grounds that Plaintiff did not present any evidence tending to show that the County and/or the Police Department had an unconstitutional policy or that they had unconstitutionally applied a proper policy. Id. at 106. Consequently, the only claims that survived were the malicious prosecution claims brought against the individual police officers ("Defendants") under § 1983 and under state law.

 This Court also granted leave to all parties to bring/renew motions for summary judgment following the completion of discovery. For the reasons discussed below, Defendants' motion for summary judgment as to Plaintiff's remaining claims is now denied.

 According to Plaintiff's complaint and affidavit, and confirmed by a statement written by the complaining witness in the underlying matter, Plaintiff and Ronnie Christian ("Christian"), an acquaintance, were lodged together at the South Bay Motel in Copiague, New York, in the fall of 1989. Before dawn, on December 2, 1989, Christian, who is much larger and stronger than Plaintiff, brought a woman back to their motel room where Plaintiff had been sleeping. Christian proceeded to brutally assault and repeatedly rape the woman. Furthermore, by the use of threatening words and behavior directed at both Cox and the woman, Christian twice compelled the woman to perform acts of oral sodomy with Plaintiff. Subsequently, when Christian fell asleep, Plaintiff told the woman to discontinue her sexual act with him and leave the motel.

 Later that morning, Defendants arrested both Christian and Plaintiff. That same day, after the arrests, Defendants obtained statements by both the rape victim and Plaintiff which clearly indicate that Plaintiff's participation in oral sodomy with the rape victim was involuntary and coerced. Notwithstanding that evidence exonerating Plaintiff from willing participation in the sexual assault, police officer Ingald swore to and subscribed a felony complaint charging Plaintiff with sodomy in the first degree, New York Penal Law § 130.50, a Class B felony.

 Plaintiff 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 history, Plaintiff's bail was set at $ 250,000, which he could not meet. On December 11, 1989, Plaintiff was indicted on the sodomy charge by a Suffolk County grand jury 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, Plaintiff remained in custody for more than 90 days.

 On March 22, 1990, Judge Harvey Sherman of the Suffolk County District Court, after an in camera review of the December 11, 1989 grand jury minutes, dismissed the indictment. Judge Sherman stated: "The evidence adduced before the Grand Jury clearly indicated that the Defendant Cox was an unwilling participant in the alleged sodomy, his participation having been obtained only upon the threat of force of Defendant Christian. Lacking is any evidence indicating that Cox had the mens rea to commit sodomy and, therefore, the charge must be dismissed as against Cox." People v. Christian and Cox, unpublished Memorandum and Decision, County Court, Suffolk County, Indictment Number 2093-89, March 22, 1990.

 In an attempt to obtain evidence tending to prove that Defendants' acted with malice or lack of probable cause in pursuing his prosecution, Plaintiff moved before the Suffolk County District Court in May of 1992 for an Order to Unseal the Grand Jury proceeding. By decision dated July 15, 1992, Judge Sherman denied plaintiff's motion, stating that "it is clear that the evidence presented to the Grand Jury was not falsified or misrepresented in an effort to secure an indictment against Cox." People v. Cox, unpublished Memorandum and Decision, County Court, Suffolk County, July 15, 1992.

 II. DISCUSSION

 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, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (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." ...


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