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ORRACA v. CITY OF NEW YORK

September 8, 1995

JOSE ORRACA, Plaintiff, against CITY OF NEW YORK, et al., Defendants.


The opinion of the court was delivered by: DENNY CHIN

 CHIN, D.J.

 Plaintiff pro se Jose Orraca brings this section 1983 action charging two New York City police officers with assault, attempted murder, and conspiracy to commit murder. Defendant Ruggio counterclaims for injuries he allegedly suffered in arresting plaintiff.

 Defendants *fn1" move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 37(d), or alternatively for summary judgment pursuant to Fed. R. Civ. P. 56.

 BACKGROUND

 The complaint details two separate and distinct events occurring some four months apart. In the first incident, occurring on January 2, 1992, plaintiff alleges that the individual defendants assaulted and tried to murder him. In the second incident, occurring on May 19, 1992, plaintiff claims that he was the victim of an assault and attempted murder by unidentified individuals acting in conspiracy with the individual defendants. (Compl. at 3).

 On January 2, 1992 defendants Molina and Ruggio, police officer Eric Faucett, and an unidentified female officer stopped four men on the corner of East 122nd Street and Lexington Avenue. (See Pl. Statement of Facts Submitted Pro Se ("Pl. Statement") at 5). Plaintiff was not one of those initially stopped, but he apparently interceded on behalf of the others, challenging the authority of the police to conduct this stop and encouraging the detainees not to cooperate with the police. (Id. at 6-7). *fn2" Plaintiff soon became embroiled in a verbal melee that devolved into violence and resulted in the four initial suspects fleeing. (Id. at 5-7).

 According to plaintiff, officer Ruggio yelled racist epithets and beat him with his fists and radio. (Compl. at 7). Ruggio claims that plaintiff resisted arrest so violently that the officer suffered physical injuries, which are the subject of his counterclaim in this action. (Affidavit of Spielberg dated 2/10/95 at 4, n.1 ("Spielberg Aff.")). During this apparent brawl, defendant Molina was apparently off to the side searching another detainee and then left the scene in pursuit of a fleeing suspect. (Pl. Statement at 7). There is no allegation in the complaint or elsewhere that defendant Molina struck Orraca.

 Plaintiff was arrested and, after a jury trial, convicted of resisting arrest and attempted assault in the third degree on defendant Ruggio. (See Compl. at 6; Spielberg Aff. at 4-5). The jury was instructed that in order to convict Orraca, it had to find beyond a reasonable doubt that he was the initial aggressor and struck the first blow. (See Exh. K to the Spielberg Aff.).

 The second incident allegedly occurred on May 19, 1992, and plaintiff has submitted widely diverging versions of this event. In the complaint, plaintiff alleges that he was standing near the intersection of 123rd St. and Lexington Avenue when he observed a single police officer standing on the "opposite corner." (Compl. at 3). Two unidentified men walked past the officer, crossed the street, approached plaintiff and shot him several times. (Id.). The assailants then ran back across the street and past the same police officer, who "casually walked up to plaintiff" and asked if he was okay. (Id.). The officer then smiled and walked away. (Id.).

 Plaintiff's other sworn account of this incident, given at his deposition, is substantially different. He testified that at the time of the shooting he was sitting in his car with friends. (See Tr. dated 4/21/94 at 81-81, attached as Exh. L to Spielberg Aff.). In addition, he claimed his assailants began firing after coming out of a vehicle parked directly across the street from plaintiff, and that they fled in this same vehicle. (Id. at 82, 177-82). Lastly, plaintiff stated that the assailants passed by at least two police officers before and after the shooting. (Id. at 138).

 Plaintiff does not allege that the individual defendants were present at his shooting in May 1992. Plaintiff purportedly believes, however, that defendants are nonetheless responsible for this attack, and the alleged basis for this belief is a threat by Ruggio, after the January 1992 incident, that he would shoot Orraca if he ever saw him near that corner again. (Compl. at 6-7).


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