The opinion of the court was delivered by: THOMAS J. MCAVOY
MEMORANDUM-DECISION and ORDER
On February 25, 1984, William Oakes was approached by two law enforcement officers and escorted to the Jefferson County Sheriff's Department. While at the Sheriff's department, Mr. Oakes was advised of the death of Edward Goulding. The record indicates that Mr. Goulding had been living with William Oakes' estranged wife and daughter and had been found stabbed to death earlier that same day. William Oakes remained at the Sheriff's department until the early hours of the next day, February 26, 1984. At approximately 3 a.m. on February 26, 1984, the police allowed Mr. Oakes to leave the station after he allegedly consented to a search of his car and room. The subsequent search produced no evidence linking Mr. Oakes with the homicide.
In the afternoon of February 26, 1984, police again took William Oakes into custody. Plaintiff alleges that during the course of this custody, defendants Robert Cooke and Edward Simser physically abused him until he confessed to the homicide of Mr. Goulding. The alleged physical abuse consisted of banging the plaintiff's head against the inside of a police vehicle, beating him and discharging a service revolver next to his ear. Based on this confession, the police arrested Oakes in connection with the murder of Mr. Goulding.
Following plaintiff's arrest, the grand jury was convened. During the course of those proceedings, plaintiff alleges that defendants Cooke and Simser conspired to "cover up" numerous purported violations of his constitutional rights by giving false testimony regarding the use of coercive methods to obtain plaintiff's confession and the use of force against him. The grand jury subsequently indicted Oakes on two counts of murder in the second degree.
Plaintiff's first murder trial, commenced in November 1984, resulted in a hung jury. Upon retrial in September 1985, a jury convicted plaintiff of one count of murder in the second degree and the judge sentenced him to a prison term of 25 years to life.
Two months after the retrial had commenced, the Jefferson County grand jury indicted Oakes for perjury based on testimony that plaintiff had given during the course of the first trial. In that testimony, Oakes had alleged violations of his civil rights by defendants Cooke and Simser. Subsequent to plaintiff's conviction and sentence for murder, the District Attorney moved to dismiss the perjury indictment. While the motion to dismiss the perjury indictment was pending Deputy Sheriff David Steyer, one of the officers assigned to the Goulding-Oakes murder investigation, made a statement alleging that defendants Cooke and Simser had admitted to lying about beating Oakes while he was in police custody in order to bolster the criminal case against him. Based on this evidence, the District Attorney dismissed the perjury indictment on March 11, 1986. Following the dismissal of the perjury indictment Deputy Sheriff Richard Burns, who was also assigned to the Goulding-Oakes homicide investigation gave a statement similar to the one given by Deputy Steyer. A departmental hearing was held and deputies Steyer and Burns were found guilty of failing to report knowledge of crimes committed by fellow officers.
Plaintiff appealed both the murder conviction and the perjury convictions. On December 21, 1990, the New York State Appellate Division reversed and vacated plaintiff's murder conviction and dismissed the indictment holding that the People failed to meet their burden of disproving Oakes' alibi defense beyond a reasonable doubt. According to the court, there was no evidence linking Oakes to the murder other than inculpatory admissions and the "confession" to the police. People v. Oakes, 168 A.D.2d 984 (1990).
On the same date, the New York State Appellate Division reversed the plaintiff's perjury conviction on the basis that the lower court had committed an error in excluding evidence which might have had a bearing on the plaintiff's ability to commit perjury. In January 1991, plaintiff was released from state prison pending a retrial for perjury. Approximately one year later, the District Attorney dismissed the perjury indictment. Plaintiff commenced the present action on March 29, 1993.
Defendant Cooke has moved under Fed. R. Civ. P. 12(b) to dismiss all but plaintiff's malicious prosecution and false arrest claims. Defendants Simser, O'Neill and Jefferson County have moved for summary judgement under Fed. R. Civ. P. 56 on all plaintiff's claims. However, Local Rule 10 (j) requires a movant to annex to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends that there is no genuine issue. Defendants' Simser, O'Neill and Jefferson County have failed to annex the requisite statement to the motion for summary judgment. This court assumes that these defendants intended to submit a rule 12(b) motion to dismiss which they have improperly designated as a motion for summary judgement and will address the motion accordingly.
On a Fed. R. Civ. P. 12(b) motion to dismiss the plaintiff's allegations are deemed to be true and must be liberally construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). Although the court does not have to accept mere conclusions of law, the court should accept the plaintiff's description of the occurrence in addition to any conclusions that can reasonably be drawn therefrom. Murray v. Milford, 380 F.2d 468 (2d Cir. 1967). A complaint should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff cannot in anyway ...