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April 16, 2004.

BRIAN GILL, Plaintiff, -against- THE CITY OF NEW YORK, OFFICER PETER QUINN, DETECTIVE GERARD GARDINER, OFFICER JAMES MELENDEZ, OFFICER RAVI JAMINDAR, sued individually and in their official capacities, Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendants the City of New York (the "City"), Detective Gerard Gardiner ("Gardiner"), Officer James Melendez ("Melendez") and Officer Ravi Jamindar ("Jamindar") (collectively the "Defendants"), have moved pursuant to Fed.R.Civ.P. 56(c) to dismiss the complaint of plaintiff Brian Gill ("Gill") brought pursuant to 42 U.S.C. § 1983 alleging violations of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and the laws of the State of New York.*fn1 For the reasons set forth below, the motion is granted in part and denied in part.

Our manners have been corrupted by communication with the saints.
Henry David Thoreau, Walden "Economy," (1854).

  In this instance, St. Patrick's Day 2002 produced a celebration of imbibition ending in a fight between members of two competing cults, the New York City Police Department, and the New York City Fire Department. This action arose out of that confrontation.

 Prior Proceedings Gill filed his complaint on December 24, 2002. Issue was joined, discovery undertaken, and an amended complaint was filed on July 14, 2003, alleging deliberate indifference to serious medical needs, punishment without due process, denial of equal protection, infringement of the Fifth Amendment right against self-incrimination, and false arrest. Additional claims for malicious prosecution, an unduly suggestive line-up, abuse of process, deprivation of Sixth Amendment rights, a claim against the City based on Monell v. Dep't of Social Servs., 436 U.S. 658 (1978), a claim of negligent hiring and retention of incompetent employees, and a claim that Quinn was acting within the scope of his employment were withdrawn following the filing of the instant motion.

  The Defendants' motion was heard and marked fully submitted on November 26, 2003.

 The Facts

  The parties have submitted statements pursuant to Local Civil Rule 56.1 from which the following statement of facts is drawn. The facts are undisputed except as noted.

  The St. Patrick's Day parade in Manhattan was held on March 16, 2002. Gill, a member of the New York City Fire Department, and a resident of Staten Island, initially intended to watch the parade but instead visited three bars in Manhattan, ending up for the second time at Connolly's at 47th Street and Madison Avenue where he intended to meet his friends Glenn Van Pelt ("Van Pelt") and Duane Snell ("Snell"). In this process Gill consumed an amount of beer. The quantity of his consumption is in dispute.

  Quinn, an off-duty police officer who was in kilts, and Snell exchanged words inside Connolly's and were asked to leave by the bouncer Alfred Collins ("Collins"). Outside, a fight began, the origination of which is in dispute, and when Gill arrived by taxi about 10:30 P.M. he saw a group of men attacking Van Pelt, who was prone. Gill joined the fray to assist Van Pelt and was punched and hit by a man wearing a kilt and by another man with a moustache wearing glasses. According to Gill, Quinn and Snell were fighting, the fighting stopped, Quinn and the men attacking Van Pelt went up the block, and then returned to attack Gill, Van Pelt and Snell. The details of the fight and its origins are in dispute.

  Melendez, Jamindar and Gardiner arrived at the scene as did an ambulance. Quinn was taken to Bellevue Hospital. According to Gill, he asked for medical assistance, entered an ambulance, and then was ordered out of the ambulance and was told he had to go to the police station to fill out a statement. According to the Defendants, Gill voluntarily left the ambulance. Gill and Van Pelt were taken to the Midtown North Precinct, voluntarily according to the Defendants, by direction of the officers according to Gill. Gill and Van Pelt were not handcuffed, and Gill believed he was going to Midtown North to make a complaint.

  According to Gill, after arrival at Midtown North he was standing in a hallway and requested medical assistance and to go to a hospital and was told that he was not under arrest and that an ambulance was coming. Gill made telephone calls to friends. Whether he mentioned his request for medical assistance is disputed.

  Gardiner investigated the incident that night and was told that the bouncer had identified Van Pelt and Gill as the perpetrators of the incident. At some point Gill was told he was not free to leave and at some time thereafter was placed in the squad cell with Van Pelt. At approximately 12:20 A.M. Gardiner took statements from two witnesses, a husband and wife from California, Diana DeRosa ("DeRosa") and Brian Burkhalter ("Burkhalter"), who described the beating received by Gill and the injuries received by the wearer of the kilt.

  At approximately 10:30 A.M. the next morning, Gardiner gave Gill his Miranda warning and provided him with a worksheet for him to sign indicating that he had been advised of and understood his rights, and that he was willing to answer questions. Shortly after Gill signed the worksheet, he gave both an oral and a written statement to Gardiner.

  Gardiner interviewed the bouncer Collins shortly after 2:00 P.M. Collins had observed the beginning of the dispute between two males and a male wearing a kilt. The bouncer asked the group to move on, which they did, and he did not observe what happened among the men until he saw the kilt-wearer on the ground being pummeled by the other two males, later identified as Gill and Van Pelt.

  Whether or not Gill requested medical assistance after being placed in the holding cell is in dispute. Gill fell asleep according to the Defendants, or became unconscious and vomited blood, according to Gill. Whether or not he was visited by E.M.S. officers and whether or not he refused treatment are matters in dispute.

  According to Gill, Robert Cohen, his attorney, called the precinct sometime between 12:00 A.M. and 6:00 A.M. on March 17, 2002, asked to speak with Gill, and told the police that they were not permitted to interrogate or take a statement from Gill without Cohen being present. Gill was taken to 100 Centre Street for arraignment and was examined by an officer of the E.M.S. Gill was charged with assault in the third degree which charges were dismissed on June 26, 2002. On March 18, Gill went to Staten Island University Hospital North for treatment. The extent of the injuries of Gill and Quinn are in dispute.

  The Defendants contend that the facts establish probable cause to arrest Gill. Gill contends he was arrested because he was involved in ...

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