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FERREIRA v. WESTCHESTER COUNTY

January 19, 1996

WILSON JOSE FERREIRA and RICARDO ATELINO GUIMARES SILVEIRA, Plaintiffs, against WESTCHESTER COUNTY, DAVID DEMORE, RAY FENNELL, KEVIN SERRETTE and JOHN IURATO, Defendants.


The opinion of the court was delivered by: PARKER

 Plaintiffs Wilson Jose Ferreira and Ricardo Silveira bring an action against defendants Westchester County ("the County") and David Demore, Ray Fennell, Kevin Serrette and John Iurato, all of whom are police officers employed by the County (collectively, "the Officers"), under 42 U.S.C. §§ 1983 and 1988. The case arises out of a set of events which occurred on January 14 1992, and which culminated with the arrests of both plaintiffs by the Officers.

 In addition to federal claims for assault, false arrest, false imprisonment, abuse of process and malicious prosecution, pursuant to 42 U.S.C. § 1983, plaintiff also alleges state tort claims *fn1" Before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. Rule 56. For the reasons set forth below, the Court grants summary judgment in favor of the County on all § 1983 claims and in favor of the Officers on plaintiffs' claim for other than those for excessive force, false arrest, false imprisonment, abuse of process, and malicious prosecution. Further, the Court grants summary judgment against Silveira on his state-law tort claims for false arrest, false imprisonment and malicious prosecution.

 FACTS

 On January 14, 1992, Officer David Demore ("Demore") witnessed a car with translucent tape blocking the rear window driving east on the Cross County Parkway. He signalled the car to pull over, and it came to a stop on a lighted exit ramp. The car pulled over and the driver stepped out briefly, thus giving Demore a chance to view him. The driver then returned to the car and led Demore on a high speed chase through the streets of Yonkers and Mt. Vernon and over the Cross County and Hutchinson River Parkways.

 The chase culminated in a head-on collision on the Sandford Boulevard exit from the Hutchinson River Parkway. At this point, Demore had another chance to view the driver from a closer distance, and observed two other passengers in the vehicle as well. Shortly thereafter, the two passengers exited the car. Demore apprehended one of them -- Martin Isidron -- while the other returned to the vehicle. The car sped away while Demore placed Isidron in his car.

 Defendants contend that, at this point, the plaintiffs attempted to flee. Plaintiffs contend that they did not attempt to flee but instead were set upon by the Officers. In either case, it is undisputed that Demore and Serrette spotted Fennell struggling with the plaintiffs and assisted him in arresting them. Demore confirmed that these were the individuals he had been chasing. *fn2" The Officers contend that the plaintiffs attempted to strike them and that they responded by using the minimum amount of force necessary to gain control of and arrest the suspects. Plaintiffs testify that they were kicked and struck by some or all of the Officers. *fn3"

 Following their arrests and processing, plaintiffs were taken to Westchester County Medical Center for treatment of minor scrapes and bruises. On March 20, 1992, Silveira, suspected of being a passenger in the car, pled guilty to a charge of disorderly conduct in Mt. Vernon City Court. Meanwhile, on March 2, 1992, a felony hearing was held in the Mt. Vernon City Court with respect to Ferreira's role as the driver of the car. Judge DiBlasi ruled that there was "reasonable cause" to believe that Ferreira had committed the felony of criminal mischief in the second degree and ordered him held pending the action of a Grand Jury. On April 14, a Grand Jury indicted Ferreira on charges of criminal mischief in the fourth degree, criminal mischief in the third degree, resisting arrest and violations of vehicle and traffic law. Ferreira was acquitted of all charges at a bench trial before Justice Carey of the County Court in June of 1993.

 DISCUSSION

 A. Standard For Summary Judgment

 Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) see also Gallo v. Prudential Residential Servs. Ltd, 22 F.3d 1219, 1223 (2d Cir. 1994.) The nonmoving party must meet a burden of coming forward with "specific facts, showing that there is a genuine issue of fact for trial," Fed.R.Civ.P. 56(e) by a showing sufficient to establish the existence of [every] element essential to the party's case, and on, which the party will bear the burden of proof at trial.

 In deciding whether a genuine issue of material fact exists, "the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d. Cir. 1989). The Court is to inquire whether there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party," Anderson v. Liberty Lobby Inc, 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), however, and to grant summary judgment where the nonmovant's evidence is merely colorable conclusory, speculative or not significantly probative. Knight v. United States Fire Ins., 804 F.2d 9, 12-15 (1986), cert denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 B. 42 U.S.C. § 1983

 42 U.S.C. § 1983 provides, in relevant part, that:

 
"every person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution ...

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