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July 25, 1994

RICHARD J. OWENS, Plaintiff,

The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge



 Plaintiff, Richard J. Owens, seeks compensatory and punitive damages for violations of 42 U.S.C. §§ 1981, 1983, 1988, and the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. The claims arise from plaintiff's arrest on May 11, 1991, for several traffic violations, including driving while intoxicated. The Defendants have moved for summary judgment on all counts of the complaint pursuant to Fed. R. Civ. P. 56. The plaintiff opposes the motion. Oral argument was heard on July 14, 1994. For the reasons discussed below, the motion is granted.


 The court has gleaned the facts from the sworn deposition testimony of both parties. Although the two versions of the incident conflict at times, the court views the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 On May 11, 1991, defendant Paul E. Colburn ("Colburn") was a uniformed police officer ("officer") employed by the Town of New Hartford. On that day, he was assigned to the 11:00 P.M.- 7:00 A.M. shift working as a motor patrol. At approximately 2:04 A.M., he observed a blue Chevrolet Suburban proceeding east on Route 5 in the vicinity of Genesee Street in the Town of New Hartford, New York. The suburban was owned and operated by the plaintiff. He observed the vehicle approach the Genesee Street/State Route 12 intersection at a high rate of speed. When the stop light changed to red, plaintiff was forced to bring his vehicle to a sudden, abrupt stop. His vehicle came to rest ahead of the stop line at the intersection.

 Colburn pulled up behind plaintiff's vehicle at the stop light. When the light changed, plaintiff proceeded north on State Route 12 at a high rate of speed. Colburn followed and clocked plaintiff's vehicle at 75 miles per hour in a 55 m.p.h. zone. Plaintiff's vehicle also swerved across the driving lane, crossing and straddling the pavement markings for the passing lane of Route 12. Colburn followed plaintiff's vehicle, caught up with it, and proceeded to activate the lights on his patrol car. Plaintiff failed to stop. When Colburn turned on the siren, plaintiff finally pulled over. This was apparently the first point at which the plaintiff noticed the patrol car.

 The officer spoke with plaintiff as he sat in his vehicle. Two other individuals were also present in plaintiff's vehicle. During questioning, plaintiff stated that his speedometer was broken and that he was unaware that he had exceeded the speed limit. *fn1" The officer detected the smell of alcohol, slurred speech, and glassy bloodshot eyes; observations which plaintiff does not contest. After further questioning, plaintiff admitted that he was on his way from a local bar and that he was driving to another bar/restaurant in Utica, New York. Plaintiff has since admitted that he drank three to four draft beers and one shot of whiskey during the course of the evening, and that he spent the entire evening (since 7:30 P.M.) at three bars in the Utica-Kirkland-New Hartford area.

 Colburn asked plaintiff to exit his vehicle and to perform field sobriety tests. Plaintiff maintains that his performance was satisfactory on all the field tests and that he was sober at the time of his arrest. The officer was of the opinion, however, that plaintiff slurred the alphabet, was unable to stand on one foot for five seconds, was incapable of walking a straight line, and failed to touch his finger to his nose with his eyes closed. Colburn believed that plaintiff was intoxicated, and advised plaintiff that he was under arrest for driving under the influence of alcohol and for other traffic violations.

 At that point, Colburn applied handcuffs to plaintiff's wrists. In the process of being handcuffed, plaintiff claims that his hands were pulled "severely and abruptly" behind him, aggravating his pre-existing spinal condition. Plaintiff was then placed in the rear passenger seat of the patrol car. While plaintiff was sitting in the vehicle, Colburn proceeded to administer an alco-sensor test, a test which indicated a blood alcohol content of .15. Plaintiff maintains that the result was tainted because the test was administered within 15 minutes from the time of the stop. He claims that fifteen minutes are needed to clear mouth alcohol. *fn2"

 Plaintiff was transported to the New Hartford police station via four lane highways (State Routes 12 and 8). It is undisputed that the ride to the station lasted less than ten minutes and that at no time during the ride did plaintiff complain of any pain or injury. Plaintiff does claim, however, that he was never secured with a seat belt and that the officer drove the patrol car "in an erratic and excessive fashion," causing him to be "rocked back and forth with [his] hands cuffed behind [him]." Plaintiff alleges that defendant's driving and the failure to secure the seat belt also aggravated his pre-existing condition.

 After arriving at the police station, plaintiff's handcuffs were removed. At that time, no mark, bruise or other evidence of injury was present on plaintiff's wrists or body. While in police custody, plaintiff made no complaints of any injuries resulting from the handcuffs or the handcuffing. Plaintiff also made no complaints about any injuries sustained during the ride to the station. These facts are all uncontested.

 At the station, plaintiff made a call to his lawyer and consented to a second breathalyzer test. The results indicated a blood alcohol reading of .16. Plaintiff was interviewed and Colburn filed a physical condition report. The record shows that plaintiff swayed back and forth, was hampered in his ability to walk, and slurred his speech during his stay at the police station. The officer also noted trembling hands, a flushed face, and glassy/watery eyes. When asked at the station whether he was ill or injured, plaintiff answered "no" to both questions. Plaintiff does point out, however, that no one ever specifically asked him whether he sustained injuries or wished to file a complaint regarding his treatment.

 After failing the breathalyzer test, plaintiff was issued traffic tickets for driving while intoxicated, speeding, driving left of the pavement markings, and the broken speedometer. Plaintiff was never incarcerated and left the station with his friend at approximately 3:00 A.M.; less than one hour after the initial stop.

 Throughout the evening, plaintiff made no complaints to police of pain or discomfort with respect to his neck, back, shoulders or arms, and never complained about the handcuffs being too tight. At no point did he inform the police that he had a pre-existing condition which might be aggravated by the use of handcuffs. In addition to not complaining of injury or illness and failing to request medical treatment, plaintiff also did not seek immediate medical treatment after his release. He visited with a physician at his regularly scheduled doctor's appointment on May 29, 1991, almost three weeks after the incident. The physician's office notes, dated May 29, 1991, mention nothing about plaintiff sustaining injuries on May 11, 1991. None of these facts are disputed.


 The court has liberally construed plaintiff's lengthy list of complaints. Plaintiff seeks compensatory and punitive damages for violations of 42 U.S.C. §§ 1981, 1983, 1988, and the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution. Plaintiff, however, only provides factual support for the following state law claims *fn3" and Fourth Amendment violations actionable under 42 U.S.C. § 1983: *fn4"

1. Arrest Without Probable Cause
2. Excessive Force
3. Denial of Medical Treatment Deliberate Indifference
4. Malicious prosecution

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