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May 24, 1997

VIRGIL OLIVER, Plaintiff, against ROBERT CUTTLER, Defendant.

The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This action arises from the claims of the plaintiff, Virgil Oliver (the "plaintiff"), an African-American male, against the defendant, New York State Parole Officer Robert Cuttler (the "defendant"), for the violation of his constitutional and common law rights as the result of his arrest for a violation of New York Vehicle and Traffic Law § 1212. The defendant now moves for an Order dismissing the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative, for an Order granting summary judgment in his favor pursuant to Fed. R. Civ. P. 56.


 The following facts are set forth in the plaintiff's complaint. Virgil Oliver is a resident of Atlanta, Georgia. At approximately 11:00 A.M. on May 24, 1995, while driving his car with two passengers, the plaintiff entered the Southern State Parkway eastbound at Exit 36. After merging with the traffic, he changed from the right lane into the center lane. The plaintiff claims that almost immediately after entering the center lane, the defendant, while on his motorcycle, began tailgating the plaintiff's car. The plaintiff then switched back into the right lane, only to be followed by the defendant. The plaintiff attempted to return to the center lane but was unable to do so.

 The plaintiff, with the defendant still tailgating him, exited the Southern State Parkway and proceeded northbound on the Sagtikos State Parkway. The plaintiff exited the Sagtikos States Parkway at exit S3 and proceeded to the intersection of the exit ramp and Pine Aire Drive in West Brentwood. When the two vehicles were stopped at a red traffic light, the plaintiff claims that the defendant "got off from his motorcycle and, without identifying himself, approached ... [his] vehicle, brandished a handgun, pointed it at ... [him] and demanded that ... [he] step out from his vehicle." When the defendant exited his vehicle, the defendant pointed his gun at the plaintiff's head. The defendant proceeded to kick the plaintiff in his legs, thus precipitating the plaintiff to the ground, and then handcuffed the plaintiff. The defendant allegedly held the plaintiff for over 30 minutes. While the plaintiff was being held by the defendant, a passerby allegedly asked the plaintiff whether she should call the police. The plaintiff responded in the affirmative. The plaintiff alleges that upon hearing this conversation, the defendant threatened the passerby with physical harm. The Suffolk County Police Department officers arrived a short time later and placed the plaintiff under arrest for reckless driving.

 Based on these events, the plaintiff filed his complaint on May 14, 1996 alleging causes of action pursuant to 42 U.S.C. § 1983 ("Section 1983"): (1) for the use of excessive force while making an arrest, in violation of the Fourth Amendment; (2) that the plaintiff's arrest was the result of racial animus, in violation of the Fourteenth Amendment; (3) that the plaintiff's arrest violated his First Amendment right of free association; (4) that the arrest violated his procedural due process in contravention of the Fourteenth Amendment; and (5) that he was unreasonably seized in violation of the Fourth Amendment. In addition, pursuant to the Court's diversity jurisdiction, the plaintiff alleges four related state law causes of action for: (1) false imprisonment; (2) assault and battery; (3) negligence; and (4) intentional infliction of emotional distress. In a Stipulation dated September 4, 1996, the plaintiff discontinued his Section 1983 claims arising from a violation of his procedural due process and from an unreasonable seizure.

 As stated above, the defendant moves for an Order dismissing the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative, for an Order granting summary judgment in his favor pursuant to Fed. R. Civ. P. 56.

 Based on sufficient notice to all the parties, the Court elects to treat this motion as one for summary judgment. Oral argument on this matter was heard on March 19, 1997.

 A. Summary judgement standard

 A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c) (setting forth summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); W.A. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United Nat'l Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, the non-movant must come forward with specific facts showing that a genuine issue exists to avoid the motion being granted. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040, 1049 (2d Cir. 1995).

 However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue-finding", not "issue-resolution." Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

 It is within this framework that the Court addresses the grounds for the present motion for summary judgment.

 B. Section 1983 claims

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

Every person who, under color of [state law] subjects, or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit on equity.

 The Supreme Court has interpreted the "plain words" of this statute as imposing liability "only for conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and its laws. Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S. Ct. 598, 604, 46 L. Ed. 2d 561 (1976).

 Whether the defendant was off-duty as plaintiff contends or on duty as maintained by the defendant, the defendant was acting "under color of state law." The defendant is a New York State Parol Officer and as such, is a "peace officer" under New York Law. See N.Y. Crim. Proc. Law § 2.10(25) (McKinney 1981). He is authorized to make an arrest within his geographic area for an offense committed in his presence. He was carrying handcuffs, and a gun issued by the state. The circumstances leading to the plaintiff's arrest was unquestionably an action under color of state-law. See Rivera v. La Porte, 896 F.2d 691, 695-96 (2d Cir. 1990) (correction officer acted under color of state law in making an arrest arising from a traffic dispute).

 Having established the first element of a Section 1983 claim, the Court will examine each of the plaintiff's claims for violation of his civil rights.

 The plaintiff seeks recovery on the grounds that the defendant used excessive force in the prior to his arrest, in violation of the Fourth Amendment. Determining whether the force used is "reasonable" under the Fourth Amendment requires objective inquiry as to whether the defendant's actions are "objectively reasonable" given the totality of the circumstances, regardless of the defendant's underlying intent or motive. Ricketts v. City of Hartford, 74 F.3d 1397, 1411 (2d Cir. 1996). "The 'reasonableness' of a particular use of force must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989). Factors to consider include: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. Thus, the test is whether "no rational jury could [find] that the force used was so excessive that no reasonable officer would have made the same choice." Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995).

 The plaintiff claims that the defendant, in the absence of any provocation or wrongdoing by the plaintiff, pointed a gun to his head, kicked him in his legs, causing him to fall. In the Court's view, these allegations if taken as true, establish a claim for excessive force.

 2. Racial animus

 The plaintiff maintains that the defendant's actions were motivated by racial animus, in violation of the Equal Protection Clause of the Fourteenth Amendment. To establish a violation of the Equal Protection Clause, it is not enough to demonstrate the defendant's bad motive. Brown v. City of Oneonta, 911 F. Supp. 580, 588 (2d Cir. 1996). The plaintiff must show the existence of a similarly situated non-minority group who has been treated differently. Id. In addition, the plaintiff must demonstrate that the defendant has treated him differently than other similarly situated minority people. Id. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249).

 The plaintiff alleges that "the action undertaken by defendant, as described above, were effected because of defendant's animus towards plaintiff's race." In his affidavit, the plaintiff states that the defendant called him "several names, including racial slurs." The use of racial slurs, alone, fail to state a claim for violation of the equal protection clause of the Fourteenth Amendment. See Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995). However, the plaintiff claims that the alleged use of racial slurs, in conjunction with the alleged acts of violence, establish a claim for violation of the equal protection clause. The Court finds that the plaintiff has made no showing that similarly situated non-minorities were treated differently than plaintiff by the defendant, nor is this alleged in the complaint. Specifically, the plaintiff has not shown nor alleged that the defendant would not have struck similarly situated non-minorities during the course of a traffic stop. The plaintiff has not shown that the defendant's alleged act of violence stems from racial animus. Since racial slurs, alone, fail to state a violation of the equal protection clause, the plaintiff's failure to prove or allege that similarly situated non-minorities would have been treated differently during the course of a traffic stop, is fatal to the plaintiff's claim for violation of the equal protection clause. Therefore, the defendant's motion for summary judgement dismissing the plaintiff's claim for deprivation of the equal protection of the laws is granted.

 3. Free association

 The plaintiff contends that the defendant violated his right of free association, as provided by the First Amendment. This violation occurred when the defendant "acting under color of state law, targets a person for violent behavior because he is associating with members of a class of persons against whom the actor has an unlawful animus...." Plaintiff's Memorandum of Law at 17.

 The U.S. Constitution affords protection to two distinct types of association: "intimate association" and "expressive association." City of Dallas v. Stanglin, 490 U.S. 19, 23-25, 109 S. Ct. 1591, 1594-95, 104 L. Ed. 2d 18 (1989). The freedom of intimate association is defined as those relationships that may be classified as familial in nature, as involving "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Roberts v. United States Jaycees, 468 U.S. 609, 620, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984). Examples of such relationships include the creation and sustenance of a family, id., marriage, Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978), the begetting and bearing of children, Carey v. Population Services Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977), cohabitation with relatives, Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977), and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925).

 "Expressive association" protects the right of individuals to associate for purposes of engaging in activities protected by the First Amendment, such as speech, assembly and the exercise of religion. It is otherwise known as "political" associational rights. Sanitation and Recycling Industry, Inc. v. City of New York, 107 F.3d 985, 996 (2d Cir. 1997). In Dallas v. Stanglin, 490 U.S. 19, 25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), the Supreme Court stated, "It is possible to find some kernel of expression in almost every activity a person undertakes - for example ... meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." The Supreme Court expressly rejected a right of association of persons solely for recreational pursuits.

 The plaintiff's complaint does not set forth any allegations that he and the two passengers travelling with the plaintiff, Krishna Collie and Howard Buford, were involved in an activity other than in a social capacity. Nor is this alleged in the affidavits of the plaintiff or the two passengers submitted in opposition to the defendant's motion for summary judgment. Therefore, the defendant's motion for summary judgment dismissing the ...

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