In fact, plaintiff's entire argument in opposition to dismissal
of this claim is predicated upon the assertion that because the
defendants lacked probable cause to arrest him, the use of any
force was excessive. Because, as noted above, Ofr. Bunch and Sgt.
Smith did have probable cause to arrest plaintiff, this argument
must be rejected. Accordingly, Raymond's third cause of action
for excessive force is dismissed.
4. Constitutional Assault Claim
Plaintiff's fourth cause of action is for deprivation of his
substantive due process right under the Fifth and Fourteenth
Amendment "to be free from being unlawfully assaulted and his
liberty right to be secure in his person." This cause of action
must be dismissed, as it is duplicative of his third cause of
action for excessive force. See Bisignano v. Harrison Central
School Dist., 113 F. Supp.2d 591, 598 (S.D.N.Y. 2000) ("Where a
particular Amendment `provides an explicit textual source of
constitutional protection' against a particular sort of
government behavior, `that Amendment, not the more generalized
notion of substantive due process,' must be the guide for
analyzing these claims.") (quoting Albright v. Oliver,
510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality
opinion of Rehnquist, C.J.)). See also Tenenbaum v. Williams,
193 F.3d 581, 600 (2d Cir. 1999), cert. denied, 529 U.S. 1098,
120 S.Ct. 1832, 146 L.Ed.2d 776 (2000).
Plaintiff cites Meredith v. Arizona, 523 F.2d 481 (9th Cir.
1975), in support of his claim that "assault" constitutes an
independent federal constitutional cause of action. He is
incorrect. The Meredith analysis has been overruled by the
Ninth Circuit, and it is no longer good law. See Armendariz v.
Penman, 75 F.3d 1311, 1325 (9th Cir. 1996). Because plaintiff's
constitutional assault claim is nothing more than a claim of
excessive force in the course of an arrest, it is subsumed within
his third cause of action and is hereby dismissed.
After careful consideration of the objections and submissions
of the parties, the relevant parts of the record, and the
applicable law, it is hereby
1. Defendants' motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.