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April 11, 2001


The opinion of the court was delivered by: Hurd, District Judge.



On November 12, 1998, plaintiff Edward J. Raymond ("Raymond") commenced the instant action against defendants Town of Ulster Police Officers Timothy E. Bunch ("Ofr.Bunch"), and William C. Smith ("Sgt.Smith"), pursuant to 42 U.S.C. § 1983, 1985,*fn1 and 1988, alleging that the defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendants now move for summary judgment on all claims against them, pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes. Oral argument was heard on December 21, 2000, in Albany, New York. Decision was reserved.


This action arises out of an arrest for an alleged drunk driving incident involving Raymond and the defendants. The following are the facts stated in the light most favorable to the nonmoving plaintiff.

On or about 6:30 a.m. on the morning of November 11, 1995, the Town of Ulster Police Department received a call on a cellular phone from Wayne Closi ("Closi"), a customer at the Dairy Mart on Leggs Mill Road in Lake Katrine, New York. Closi advised the police dispatcher that he had observed an individual at the Dairy Mart who appeared to be drunk, and who had just purchased gasoline and was preparing to drive away. Closi further advised the Ulster police that the individual was in a four-door blue Dodge with New York plate number F790JW. Based on this call, Ofr. Bunch was dispatched to the store.

When Ofr. Bunch arrived at the store, he observed the plaintiff sitting in a car which matched the description and plate number which he had been given. He spoke briefly with Raymond, then went inside the Dairy Mart to speak with Closi.*fn2 Inside the Dairy Mart, Closi and a Dairy Mart employee, Nora Osetek ("Osetek"), both conveyed their observations of plaintiff, i.e., that he had difficulty pouring a cup of coffee, that he was staggering, that his speech was slurred, and that he smelled strongly of alcohol. Closi then directed Ofr. Bunch to the vehicle in which plaintiff was sitting.

At some point during this exchange, Ofr. Bunch observed plaintiff drive off from the Dairy Mart. Sgt. Smith, who was en route to the store to assist Ofr. Bunch, met Ofr. Bunch on the road.*fn3 The two then followed plaintiff to his home — which was approximately a quarter of a mile from the Dairy Mart and visible from the store's parking lot — in their separate vehicles.

When the officers arrived at plaintiff's home, he was already inside. The officers knocked on his door, and told plaintiff that they had his car keys and that they were taking them to the police station.*fn4 When plaintiff opened the door, the officers forced their way into plaintiff's home. Sgt. Smith then punched, kicked, and pepper sprayed plaintiff.*fn5 Both defendants then handcuffed Raymond, and placed him under arrest. He was charged with drunk driving and resisting arrest, and was indicted by a grand jury on these charges on February 23, 1996.

Because plaintiff had refused a breathalyzer test at the time of his arrest, a chemical test refusal hearing was held in December of 1996 before a New York State Department of Motor Vehicles administrative law judge ("ALJ") pursuant to New York Vehicle and Traffic Law § 1194. Both defendants testified under oath at that hearing. The ALJ found that the defendants did not have probable cause to arrest him for drunk driving. Raymond was subsequently acquitted of the criminal charges by a jury. The instant action followed.


A. Summary Judgment

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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 ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).

B. 42 U.S.C. § 1983

To recover damages under 42 U.S.C. ยง 1983, plaintiffs must show that: (1) "the conduct complained of was committed by a person acting under color of state law"; and (2) such "conduct deprived [plaintiffs] of rights, privileges or immunities secured by the Constitution or laws of the United States." Greenwich Citizens Comm., Inc. v. Counties of Warren and Washington Indus. Dev. Agency, 77 F.3d 26, ...

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