a domestic violence policy, he was arrested for menacing with a gun.
C. Substantive Due Process
The plaintiff claims that the conduct of the defendants rises to level of a violation of his substantive due process rights, so that an exception to the general rule requiring a favorable termination exists in this case. The Roesch Court contemplated a Section 1983 claim being stated where the "entire process was unfair and resulted in an essential denial of due process." Roesch, 980 F.2d at 854. A state violates substantive due process when its action 'offends those canons of decency and fairness which express the notions of justice of English-speaking people'... [and are] so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id. (citations omitted). The Albright case, however, cast doubt even on this exception. In Albright the Supreme Court held that a malicious prosecution claim brought under Section 1983 is actionable as a violation of the unreasonable search and seizure provision in the Fourth Amendment, and not as a violation of substantive due process "with its scarce and open-ended guideposts." Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994). However, even if the Court were to review the events surrounding the arrest and prosecution under the more liberal Roesch exception, the Court could not conclude on the facts stated in the amended complaint that the alleged conduct of the defendant was so egregious and unconscionable as to rise to the level of a substantive due process violation.
D. Fourth Amendment
i. excessive force
Based on the allegation of the amended complaint that the plaintiff was injured, the Court granted leave to replead the excessive force allegation. The allegations of the amended complaint do not differ materially from the allegations of the original complaint, which stated that the plaintiff was pushed, that his arm was painfully and roughly twisted, and that he suffered such difficulties a disabling knee injury, arm, shoulder, back and leg injuries causing pain. The amended complaint adds the following: (1) the arm twisting caused intense pain; (2) the arm was twisted to the middle of the plaintiff's back; and (3) harsh words as well as profanities were spoken by the officer.
"'Not every push or shove' is excessive," Calamia v. City of New York, 879 F.2d 1025, 1034 (2d Cir. 1989) (quoting Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)). However, at this point in the litigation, and accepting all of the allegations in the amended complaint as true, the Court cannot state as a matter of law that the plaintiff has not alleged an excessive force claim. Accordingly, the defendant's motion to dismiss this claim is denied.
ii. the strip search
The additional allegations of the amended complaint regarding the strip search do not state a claim under the Fourth Amendment. Strip searches and body cavity searches are not precluded by the Fourth Amendment for misdemeanor arrestees where officials have a reasonable suspicion that a weapon or other contraband is concealed, based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest. Wachtler v. County of Herkimer, 35 F.3d 77, 81 (2d Cir. 1994). The fact that the plaintiff was charged with menacing a weapon, based on the sworn statement of Daniel Burko, provided the element of reasonable suspicion. A blanket policy of strip searching all arrestees charged with misdemeanors would be prohibited by the Fourth Amendment, however there is no allegation of such a policy here. See Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1029 (1987). The additional allegations of the amended complaint, namely that during the strip search the searching officer spoke harshly, gave orders and used profanity, do not cure the deficiencies of the original complaint.
E. Probable Cause
The plaintiff alleges that his arrest was without probable cause. The Second Circuit's recent Singer decision stated that "there can be no federal civil rights claim for false arrest where the arresting officer had probable cause." Singer, 63 F.3d 110, 1995 U.S. App. LEXIS 21569 (citing Bernard v. U.S., 25 F.3d 98 (2d Cir. 1994)). "An arresting officer advised of a crime by a person who claims to be the victim, and who has signed a complaint or information charging someone with the crime has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity." Id. (citations omitted).
Annexed to the amended complaint is the sworn affidavit of Daniel Burko, which describes the incident with the plaintiff and states that the plaintiff threatened him with a gun. Nothing in the amended complaint suggests that the police had reason to doubt Burko's veracity. Under Singer these facts satisfy the requirements of probable cause, so that the plaintiff's allegations that probable cause for his arrest was lacking are without merit. In any event, as discussed above, there was not favorable termination on the merits to support this claim. See Singer, supra, 63 F.3d 110, 1995 U.S. App. LEXIS 21569; Johnson, supra, 1995 U.S. App. LEXIS 22593.
F. Equal Protection
The Court finds that the allegation that the "plaintiff's right to equal protection was violated because the extra-legal conduct of police was attributable to a desire to support his wife in a marital dispute as a result of her status as a female" is conclusory, not supported by facts and fails to state an equal protection claim upon which relief may be granted. Furthermore, as discussed above, the requirement of a favorable termination on the merits is lacking. See Singer, supra, 1995 U.S. App. LEXIS 21569; Johnson, supra, 1995 U.S. App. LEXIS 22593.
G. The First Amendment
The plaintiff also argues that the Second Circuit's decision in Johnson v. Bax, 63 F.3d 154, 1995 U.S. App. LEXIS 22593 (2d Cir. August 16, 1995) requires the Court to analyze this case for violations of the First Amendment. In Johnson, the plaintiff was arrested and incarcerated for two days for demonstrating and carrying signs in a certain area near a location where President Clinton was to speak. Johnson sought relief for interference with his First Amendment rights, but "the district court construed the [pro se] complaint to allege only causes of action for false arrest and false imprisonment, omitting consideration of Johnson's claim that the violation of his First Amendment rights entitled him to relief." Johnson, at *3. The district court granted summary judgment to the defendants because the charges against the plaintiff were 'adjourned in contemplation of dismissal.' Id. The Second Circuit found that the plaintiff's complaint alleged impairment of First Amendment rights "in numerous respects" so that an assessment of the merits of that claim was required irrespective of the dismissal of the claims for false arrest and false imprisonment. Id.
Nowosad asserts that the following paragraph of the amended complaint constitutes a First Amendment claim:
Plaintiff, while experiencing intense pain in the area of his left arm, made inquiry as to what was going on and Sergeant Carparelli reacted by declaring: "Getting even mother-fucker--we'll figure it out later;" this was reference to plaintiff's conduct in complaining of misconduct of A First County precinct officer with the result that the latter was reprimanded.