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BEZERRA v. COUNTY OF NASSAU

March 14, 1994

JORGE BEZERRA and MANUELA BEZERRA, Plaintiffs,
v.
COUNTY OF NASSAU, GEORGE KUEBLER and ROBERT HILLMAN, Defendants.



The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge:

 The plaintiffs have brought an action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3), charging false arrest and imprisonment, use of excessive force, malicious prosecution, and pendent state law claims of assault, battery, intentional infliction of emotional distress, and loss of companionship. The defendants move to dismiss the Complaint as against Nassau County ("County") pursuant to Fed. R. Civ. P. 12(b)(6), and as against all the defendants because it is time barred. Additionally, the defendants seek dismissal of the Complaint because the same action is currently pending in the New York State Supreme Court, Nassau County.

 BACKGROUND

 The plaintiffs further allege that the defendants maliciously and falsely prosecuted Bezerra under the fabricated charges. Ultimately, after a jury trial in Nassau County District Court, Bezerra was found not guilty of the criminal charges filed against him by the defendants.

 The plaintiffs initiated the present action on May 18, 1993. Their Complaint sets forth four causes of action for relief based on the alleged violation of Bezerra's rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution resulting from his false arrest, false imprisonment and malicious prosecution. There are also three pendent state law causes of action for assault, battery, and intentional infliction of emotional distress, and a cause of action on behalf of Manuela Bezzera for loss of her husband's society, aid and care. The plaintiffs seek compensatory and punitive damages, pre-judgment interest, and costs and attorney's fees.

 MOTION BEFORE THE COURT

 The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint as against Nassau County, because the plaintiffs have not alleged that the defendants acted pursuant to a county custom or policy as required by Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

 Moreover, the defendants move to dismiss the Complaint in its entirety as against all of them, because the causes of action alleged in the Complaint are time barred. According to the defendants, the causes of action for false arrest, false imprisonment, assault, battery and intentional infliction of emotional distress accrued on the date of the arrest, September 19, 1989, and the cause of action for malicious prosecution accrued on April 6, 1990, the "disposition date" appearing on Bezzera's Notification of Sealing, issued after his acquittal. These dates are more than three years prior to the date the Complaint was filed, May 18, 1993, and, therefore, the defendants claim that they are barred by the three year statute of limitations applicable in section 1983 actions.

 Finally, the defendants argue that the complaint should be dismissed because the plaintiffs initiated the same action in the New York State Supreme Court, Nassau County, on November 1, 1990.

 In response, the plaintiffs argue that the causes of action are not time barred, because they have been extended pursuant to the provisions of New York Civil Practice Law and Rules ("CPLR") § 215(8). That subsection provides that for certain intentional torts listed in section 215, an extension of one year is given from the applicable one year statute of limitations in civil actions governed by the section, in cases where a criminal proceeding is commenced with respect to the event or occurrence from which the intentional tort claims governed by the section arise. The one year extension provided by section 215(8) runs from the date the criminal action is terminated. According to the plaintiff, the criminal action against Bezerra was terminated on July 8, 1992, upon his acquittal by the jury. Because the Complaint in this case was filed on May 18, 1993, well within the one year extension granted under the statute, the plaintiffs argue the Complaint is not time barred.

 The plaintiffs further contend that a proper claim has been stated against the County. The plaintiffs allege that the County is liable here, not only on the basis of respondeat superior, but also because the County follows a policy of acquiescing in police misconduct and brutality, and in not investigating such police behavior when it is brought to the County's attention. Such conduct on the part of the County is actionable under section 1983 pursuant to Monell. Moreover, the plaintiffs claim that the County's liability is premised on a claim under 42 U.S.C. § 1985(3), for conspiracy in the violation of Bezerra's civil rights.

 Finally, the plaintiffs argue that the present case should not be dismissed on account of the pending state court proceeding, because the present action is broader than, and raises different issues from, the case pending before the state court. The plaintiffs enumerate the following differences between the two actions: (1) the state action has not named the police officers as defendants; (2) the state action does not include the claim for malicious prosecution; (3) the state action does not encompass the section 1985 cause of action, nor the specific federal constitutional violations under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. If the Court were to deny the defendants' motion, the plaintiffs state that they will move to voluntarily withdraw the state court action, upon the consent of the defendants.

 The Court will address each of the issues raised by the parties, after stating the standard applicable when considering a motion ...


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