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NOWOSAD v. ENGLISH

October 17, 1995

HENRY NOWOSAD, Plaintiff, against KEVIN ENGLISH, shield no. 583, individually and as police detective of the Suffolk County, New York Police Department; SERGEANT CARPARELLI, shield no. 742, individually and as a police sergeant of the Suffolk County, New York Police Dept.; DONNA LATTANZIO, badge no. 4005, individually and as a police officer of the Suffolk county, New York Police Department; OFFICER KORENSKI, badge no. 3489, individually and as a police officer of the Suffolk County, New York Police Department; and COUNTY OF SUFFOLK, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This action was commenced by the plaintiff Henry Nowosad ("Nowosad") on March 10, 1994, pursuant to 42 U.S.C. § 1983, the Fourth, Fifth and Fourteenth Amendments to the Constitution and the common law tort of malicious prosecution. On January 27, 1995, Nowosad moved to amend his complaint and the defendants made cross-motions to dismiss, or in the alternative to deny Nowosad's motion to amend. In an oral decision rendered on the record on February 17, 1995, and followed by a written Order dated February 18, 1995, the Court granted Nowosad's motion to amend the complaint and dismissed the complaint as to the defendant Daniel Burko, without prejudice. Nowosad filed an amended complaint on March 3, 1995. On August 8, 1995, a stipulation of discontinuance with prejudice was filed as to the defendant Daniel Burko.

 The remaining defendants, Kevin English, Sergeant Carparelli, Donna Lattanzio, Officer Korenski and Suffolk County moved the Court for an Order dismissing the amended complaint pursuant to Fed. R. Civ. P. 12 (b) (6), for failure to state a claim upon which relief may be granted. The named defendants are sued individually and as members of the Suffolk County Police Department. The County of Suffolk, a municipal corporation, is sued as the employer of the above-named police personnel pursuant to 42 U.S.C. § 1983.

 BACKGROUND

 The facts of the case are set forth in the record of oral argument of the parties' motion on February 17, 1995 and will not be repeated at length.

 Nowosad, a Suffolk County resident, is a detective with the New York City Transit Authority but was not on duty at the time of the events in this action. The lawsuit arises out of events surrounding Nowosad's arrest for criminally menacing another person with a weapon in October of 1992. Nowosad's Amended Complaint asserts that the police defendants unlawfully arrested him, employed excessive force in dealing with him, illegally strip searched him and maliciously prosecuted him. The County of Suffolk is also named as a defendant for its "condonation of such official misconduct" and the complaint alleges that the County is liable under a respondeat superior theory.

 In its February 17, 1995 oral decision, the Court stated that under controlling Second Circuit authority, the plaintiff's underlying criminal charges would not support a Section 1983 claim for malicious prosecution or false arrest because those charges were dismissed in the interest of justice pursuant to N.Y. Crim. Pro. Law § 170.49 and so there was no favorable termination. See Roesch v. Otarola, 980 F.2d 850 (2d Cir. 1992). The Court granted Nowosad the opportunity to replead facts that would bring his case within the exception to the favorable termination requirement, which provides that where the circumstances surrounding the false arrest are so egregious and offensive to the fundamental traditions and conscience of the English-speaking peoples, that they are actionable as a violation of procedural or substantive due process. See Roesch, 980 F.2d at 854. The Court also stated that the facts set forth in the original complaint regarding the circumstances of Nowosad's arrest did not rise to the level of a Fourth Amendment violation. Nowosad was granted leave to replead that claim as well.

 The plaintiff argues that the circumstances surrounding his arrest and prosecution by the defendants constitute a violation of his due process rights so that an exception to the favorable termination requirement is justified. Nowosad also contends that the amended complaint demonstrates that one of the two charges lodged against him, namely a domestic violence charge, was terminated in his favor.

 The following is a summary of the amendments to Nowosad's complaint:

 
(1) With regard to the police officers' conduct during Nowosad's arrest, the amended complaint states that the plaintiff's arm was twisted "behind his back to within inches of his neck," which caused "intense pain," and that the police "roughly patted plaintiff down." It is also alleged that the police spoke harshly to the plaintiff and his friend and that profanities were uttered. The plaintiff alleges that he suffered "pain" and "such physical difficulties as disabling right knee, leg and left arm injuries." The amended complaint alleges that the arrest was without probable cause and was for the purpose of retaliating against the plaintiff for complaining of misconduct by another police officer.
 
(2) With regard to Nowosad's being taken to the police precinct and detained, the amended complaint alleges that the police had no "legal justification" and "no legal right" for questioning Nowosad about the whereabouts of the car that Burko had been towing. It is also alleged that Nowosad was held for more than 2 and 1/2 hours before being advised of the charges against him and that he was advised that the police "had not yet decided" what charges would "give the appearance of propriety to the arrest." The amended complaint alleges that the police first advised Nowosad that he would be charged with robbery for taking possession of "his own vehicle" and then advised that he was being charged with menacing with a weapon. It is also alleged that the police made unsuccessful efforts to have "Ms. Nowosad" [presumably the plaintiff's spouse or ex-spouse], who was nearby during the altercation with Burko "falsely declare" that the plaintiff possessed a gun during the incident. Burko's affidavit, which was given to the police at the time of the incident is annexed to the amended complaint, states that he was threatened with "a revolver."
 
(3) With regard to the allegedly impermissible strip search, the amended complaint alleges that the defendant Korenski made disparaging remarks about the plaintiff, used profanity, "insisted" that the plaintiff remove articles of clothing, and "gave orders, using a harsh tone of voice."
 
(4) With regard to the "charge" of domestic violence, the amended complaint alleges that this claim was brought solely for the purpose of detaining the plaintiff overnight, because no release would be possible for such a "charge" prior to a court appearance. The amended complaint states that the "domestic violence charge" was dismissed as "baseless" because there was "no blood relationship between Mr. Burko and plaintiff. The amended complaint also alleges, however, that the conduct of the police "was attributable to a desire to support his wife in a marital dispute as a result of her status as a female." It is apparent from the transcript of the plaintiff's criminal hearing regarding the menacing charge, which is annexed to the amended complaint, that the episode giving rise to this law suit in some way involved a marital dispute over possession of the car that was being towed. The amended complaint alleges that the "domestic violence charge" was made without probable cause, that the only complaining witness, namely Burko, was not related to Nowosad, and that the termination of the "charges" was therefore in the plaintiff's favor.
 
(5) With regard to the menacing charge, the amended complaint states that the defendants "knew that plaintiff possessed no weapon at any time relevant hereto." This statement is added to the allegation of the original complaint, which stated that the defendants were aware that the plaintiff was a Transit Authority detective and that they believed he was required to carry a black revolver at all times. It is also alleged in the amended complaint that because the defendants "knew" that the plaintiff did not have a revolver, they made no effort to locate the weapon at the plaintiff's house. The amended complaint alleges that the prosecutor relied on false information that the plaintiff possessed a revolver (the opening statement at the hearing is annexed to the complaint) and that the prosecutor later learned that the plaintiff's service weapon was a "nine millimeter semi-automatic gun," and not a revolver and that he counselled Burko to profess an inability to remember the type of weapon with which he was threatened. The amended complaint refers to annexed testimony of Burko at the plaintiff's trial, where he describes the weapon in question, but does not identify its type as a "revolver."
 
(6) With regard to the defendant Suffolk County, the amended complaint sets forth a claim of liability based on a respondeat superior theory. The amended complaint also relates that the necessary prerequisites, including filing a notice of claim, to bringing suit against the County were satisfied.

 DISCUSSION

 A. Standard of review

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air ...


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