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RIVAS v. SUFFOLK COUNTY

July 21, 2004.

RUDI RIVAS, Plaintiff,
v.
SUFFOLK COUNTY, SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE, JAMES CATTERSON, Individually and as District Attorney for Suffolk County, SUFFOLK COUNTY POLICE DEPARTMENT, JOHN KUMIEGA, and JAMES RIVERA, Defendants.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

I. BACKGROUND

  In a complaint filed on January 27, 1995, the plaintiff, acting pro se, alleged that he was arrested on December 11, 1991 for the crime of attempted murder in the second degree. Rivas remained in the Suffolk County Correctional Facility for approximately one year until his release on bail. The district attorney eventually dismissed the charges against the plaintiff on November 17, 1993. In the original complaint, the plaintiff contends that the Suffolk County Police Department lacked probable cause for his arrest, and that Suffolk County was negligent in failing to adequately oversee the police department's actions.

  On January 15, 2000, this Court issued an order granting leave to the plaintiff to serve an amended complaint. This amended complaint sharpened his original complaint and set forth three causes of action: first, a cause of action for false arrest under 42 U.S.C. § 1983 against Suffolk County Police Officers James Rivera and John Kumiega, on the grounds that Rivera and Kumiega participated in the arrest of the plaintiff; second, a cause of action sounding in malicious prosecution alleging that Rivera and Kumiega engaged in a conspiracy with Suffolk County District Attorney James Catterson and Assistant District Attorney Briant Grauer to obtain an indictment of the plaintiff by means of fraudulent documents and false testimony; and third, a New York State cause of action alleging intentional infliction of emotional distress.

  In the amended complaint, Rivas alleges that defendants Rivera and Kumiega "presented to the said Suffolk County Grand Jury prevaricated (sic) and fraudulently contrived documents . . . (and) did cause the plaintiff herein (Rudi Rivas) to be falsely and unconstitutionally indicted by that said Suffolk Grand Jury."

  The plaintiff has persistently complained of not being represented by counsel and has made numerous motions for the appointment of pro bono counsel. In an order dated July 30, 2002, the Court determined, sua sponte, that counsel should be appointed to represent the plaintiff. Unfortunately, the Court's efforts to obtain counsel were unsuccessful. In an order dated June 2, 2004, the Court reported:
The Court attempted to retain counsel for the plaintiff by presenting the case to two different attorneys. Neither attorney accepted the assignment for varying reasons. The plaintiff now moves for appointment of counsel. However, the plaintiff is advised that the Court, after a substantial effort, has been unable to retain an attorney willing to represent the plaintiff. Accordingly, the plaintiff's motion for appointment of counsel is DENIED.
II. THE TRIAL
  On Monday, July 12, 2004, a jury was selected. Following the empaneling of the jury, they were adjourned to Thursday, July 15, 2004, for the commencement of the trial. Also, on July 12, 2004, after the jury was recessed, the Court entered into an extended discussion of the issues with the plaintiff Rudi Rivas and counsel for the defendants. The plaintiff does not speak, read or understand English, and all communications with him were done by way of Spanish interpreters.

  At that time, the Court advised the plaintiff that the filing of an indictment in the attempted murder charge was presumptive evidence of probable cause in both the Section 1983 false arrest and Section 1983 malicious prosecution causes of action. The Court further advised Rivas that, in order to prevail and overcome the consequences of the indictment, he would have to produce evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct showing bad faith. In answer to the Court's question, the plaintiff stated that the events took place so long ago that he did not remember what occurred. In addition, he stated that he had no witnesses to substantiate his case. At that time, the plaintiff seemed somewhat uncertain as to whether he would testify.

  On the adjourned date, Thursday, July 15, 2004, the Court again explained that law with regard to the indictment and its presumptive evidence of probable cause. Again, the plaintiff seemed uncertain as to whether he would testify and once more stated that he had no witnesses. The jury was then brought into the courtroom, and the oath was given to them. The Court then gave the jury the usual preliminary instructions including an explanation of the dual role of a pro se plaintiff and one who speaks only through an interpreter. The plaintiff then made an opening statement. Defense counsel both waived opening. The Court then asked the plaintiff to commence his case. The plaintiff stated that he did not wish to testify. The Court excused the jury and again gave the plaintiff the opportunity to testify. In addition, the Court explained the consequences of the plaintiff's failure to testify; namely, that the complaint would be dismissed and he would lose his case. After several equivocal moments, the plaintiff finally stated that he would not take the witness stand

  The Court then rendered an oral decision dismissing both federal Section 1983 causes of action and the complaint in its entirety. This written decision is being made to clarify the Court's rulings and to complete the record.

  III. DISCUSSION

  A. The Standards

  Federal Rules of Civil Practice ("FRCP") 50(a) provide for a judgment as a matter of law:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party. . . .
Fed.R.Civ.P. 50(a).

  In this case, as stated above, the jury was empaneled; preliminary instructions were given to the jury; and the plaintiff pro se made an opening statement. The plaintiff then declined to take the witness stand and offered no witnesses or exhibits in support of his causes of action. Accordingly, pursuant to FRCP 50(a), the Court must determine all the issues raised in the plaintiff's complaint against him and grant the defendants' motion for judgment as a matter of law and dismiss the complaint. However, to ...


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