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December 4, 1996

JOSEPH LEWIS, Plaintiff,

The opinion of the court was delivered by: FELDMAN


 Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this matter, including trial, by the Magistrate Judge. Pending before this Court are summary judgment motions made by Sheriff Meloni (Docket # 18) and Deputy VanThof (Docket # 26).


 The facts, viewed in the light most favorable to plaintiff, may be summarized as follows.

 Joseph Lewis (Lewis) is an ex-Marine who was born and raised in Rochester, New York. Upon his honorable discharge from the service in 1989, he lived for a time in South Carolina, although he would often visit family and friends in Rochester.

 One such visit occurred during the summer of 1990 when Lewis traveled to his hometown for a family reunion. While in Rochester, Lewis stayed with his nephew Ronald Hughes, and Hughes' roommate, the now notorious Jeffrey Cala (Cala). While residing with Hughes and Cala, Lewis observed that Cala had a serious drug problem.

 Unbeknownst to Lewis, however, was that Cala's problems went beyond his own personal use of drugs. Indeed, Cala was the target of a law enforcement investigation involving the criminal sale of controlled substances, a felony for which, if convicted, Cala faced a possible life sentence. In order to alleviate the potential penalty he faced, on February 20, 1990 Cala signed a contract with the Monroe County District Attorney's office in which he agreed to "arrange" five "undercover purchases of narcotic drugs resulting in five separate prosecutable offenses for Class A-I Felony" prosecutions under New York State law. If he succeeded, the District Attorney's Office promised to recommend a sentence of lifetime probation upon Cala's plea of guilty to narcotics trafficking. Thus, unknown to Lewis, during the summer of 1990 Cala was actively involved with law enforcement agents trying to "arrange" the required five purchases of narcotics.

 Sometime before August 10, 1990, Cala approached Lewis and asked to borrow several hundred dollars. Cala explained that he only needed the money for a short time and would be able to repay the loan, along with substantial interest, within a "two or three days". Lewis, who was behind in court-ordered child support payments and was apparently looking for a way to generate additional cash, agreed to loan Cala $ 800.

 Unfortunately for Lewis, Cala did not keep his promise for immediate repayment. Instead, in a peculiar, if not unfortunate, effort to demonstrate that he was not going to "shaft" Lewis, Cala offered to post as security a small bag of white powder which Lewis believed to be cocaine. Lewis agreed to take possession of the bag as "collateral" for the loan.

 On August 10, 1990 Cala announced to Lewis that he was now able to pay back the loan with interest. Cala asked Lewis to "give him a ride" so that Cala could pick up some money. Lewis agreed. At some point prior to entering Lewis' car, Cala took possession of the bag of cocaine. During a pre-trial deposition, Lewis testified that he thought they were driving to Cala's grandparents house where Cala was going to obtain funds to repay him. *fn1"

 Driving his own car, Lewis was instructed by Cala to go to B.I.C. Bowling Lanes on Goodman Street. According to Lewis, Cala briefly exited the car and then returned with an individual whom Lewis had never seen before. Cala sat in the back seat of the car while the stranger (who was Deputy Sheriff Thomas VanThof) got into the front passenger seat. VanThof asked "where's the stuff" to which Cala responded by pointing to a bag of cocaine between the two front seats. VanThof picked up the bag of cocaine, made a comment about it looking like "good stuff" and attempted to hand Lewis money. Lewis refused the money, stating that the transaction had nothing to do with him. Cala himself then took the money from VanThof and VanThof exited the car with the package. Soon thereafter, either on the way back to Cala's apartment or after arriving at the apartment, Cala paid Lewis $ 1600, which sum included the promised interest.

 For reasons not clear, VanThof waited until December, 1990 to swear out a criminal complaint against Lewis based on the events of August 10, 1990. A warrant for Lewis' arrest was issued, but Lewis was not apprehended until January, 1991. Lewis was indicted on narcotics offenses related to the August 10, 1990 incident and was tried before a jury in New York State Supreme Court. During the trial, Lewis offered the affirmative defense of entrapment. On August 3, 1992, the jury acquitted Lewis of all charges.

 About a year later, Lewis commenced the instant lawsuit. In his complaint, Lewis seeks relief pursuant to 42 U.S.C. § 1983, alleging that his federal civil rights were violated when he was arrested and prosecuted for his supposed involvement in the August 10th "drug sale". The complaint also alleges causes of action for false arrest, malicious prosecution and abuse of process. These latter claims, made ...

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