Cox v. County of Suffolk

• Decision Date: 10 December 1991
• Docket Number: No. CV 91-0801.,CV 91-0801.
• Citation: 780 F. Supp. 103
• Parties: Richard COX, Plaintiff, v. The COUNTY OF SUFFOLK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

780 F. Supp. 103

Richard COX, Plaintiff, v. The COUNTY OF SUFFOLK, et al., Defendants.

No. CV 91-0801.

United States District Court, E.D. New York.

December 10, 1991.

COPYRIGHT MATERIAL OMITTED

Richard J. Kaufman, Port Jefferson, N.Y., for plaintiff.

E. Thomas Boyle, Suffolk County Atty. by Charles P. Kelly, Hauppauge, N.Y., for defendants.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff Richard Cox brings this action for alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 and for pendent state claims against the County of Suffolk ("County"), the Suffolk County Police Department ("Police Department"), and Suffolk County police officers Thomas A. Ingald, David Maddox, Arthur Ahl and Gail Schaarschmidt ("police officers"). This Court's jurisdiction is based on 28 U.S.C. §§ 1331, 1332, 1343 and pendent jurisdiction. Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed below, the motion is granted in part and denied in part, with leave granted to all parties to replead after the completion of discovery.

BACKGROUND

According to Cox's complaint and affidavit, he and Ronnie Christian, an acquaintance of three or four years, were out-of-state workers for the New York Telephone Company who, in the fall of 1989, were lodged together at the South Bay Motel in Copiague, New York. Before dawn, on December 2, 1989, Christian, who is much larger and stronger than Cox, brought a young woman back to their room where Cox had been asleep. Over Cox's verbal protests, Christian proceeded to brutally assault and repeatedly rape the woman. Further, by the use of threatening words and behavior directed at the woman and at Cox, Christian twice compelled the woman to perform acts of oral sodomy with Cox. Finally, after raping the woman yet again, Christian fell asleep. Cox then told the woman to discontinue her sexual act with him, and to dress and leave the motel room. Cox remained in the room and went back to sleep. At approximately eight o'clock in the morning he was awakened by the police, arrested and charged with sodomy in the first degree, a Class B felony.

Cox alleges that when he was first taken into custody he was told by a female officer that the police had spoken with the complaining witness (the rape victim), that they knew Cox was not responsible for the attack, and that they just wanted to take his statement. Moreover, by 9:18 a.m. the complaining witness had completed a three page written statement for the police which stated in relevant part: "I think Cox wanted no part of the oral sodomy but I could tell he was really scared of Christian".

Nevertheless, Cox alleges that while he was being questioned at the police station that same day, he was kicked once or twice in the leg by an unidentified plainclothes police officer. He further alleges that when he was arraigned the following day in Suffolk County District Court, a NYSIIS report of a Richard J. Cox, who was born in the same month and year as plaintiff, was presented as plaintiff's prior criminal record. Partly as a result of Richard J. Cox's prior criminal record, plaintiff's bail was set at $250,000, which he could not meet.

On December 11, 1989, Cox was indicted on the sodomy charge by the Grand Jury of Suffolk County and Richard J. Cox's NYSIIS report was again presented to the Court at plaintiff's bail hearing. Bail remained at $250,000 and, as a result, he remained in custody for more than 90 days.

On March 22, 1990, the Suffolk County District Court, after an in camera review of the December 11, 1989 Grand Jury minutes, dismissed the indictment. Cox clearly showed "that the evidence before the Grand Jury, if unexplained and uncontradicted, would not warrant a conviction by a trial jury" because Cox was an unwilling participant in the oral sodomy and therefore lacked the mens rea to commit sodomy in the first degree. People v. Christian and Cox, unpublished Memorandum and Decision, County Court, Suffolk County, Indictment Number 2093-89, March 22, 1990.

Plaintiff lists 5 causes of action in his complaint: (1) deprivations of his Constitutional Rights under the Fourth, Fifth and Fourteenth Amendments based upon false arrest, malicious prosecution, and the use of excessive force by police officers, all in violation of 42 U.S.C. § 1983; and pendent state actions for (2) negligence; (3) assault and battery; (4) false arrest; and (5) malicious prosecution.

I. DISCUSSION

A party seeking summary judgment has the burden to establish that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). 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, 994, 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)).

A. NEGLIGENCE, ASSAULT AND BATTERY AND FALSE ARREST CLAIMS

The parties have agreed that plaintiff's second, third and fourth claims (the pendent state claims for negligence, assault and battery, and false arrest) are barred by New York's notice of claim provisions and its statute of limitations. See General Municipal Law §§ 50-e, 50-h and 50-i.

B. SECTION 1983 CLAIMS AGAINST THE COUNTY AND THE POLICE DEPARTMENT

Cox's § 1983 action is based on (1) alleged violations of his rights under the Fifth and Fourteenth Amendments due to his arrest and prosecution, without probable cause, for sodomy in the first degree and (2) an alleged violation of his rights under the Fourth Amendment by an unidentified police officer's use of excessive force during questioning.

In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a local government may not be sued under § 1983 under a theory of respondeat superior. "Instead, it is when the execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. at 2037. Moreover, "where the policy relied upon is not itself unconstitutional, considerably more proof than a single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy' and the constitutional deprivation." City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) (plurality opinion).

Plaintiff in this case has stated no facts to support the bare assertion in his complaint that the County and the Police Department institutionalized, authorized, tolerated or approved the alleged misconduct of the police officers named in this action. He has not presented any evidence tending to show that the County and/or the Police Department have an unconstitutional policy or that they have unconstitutionally applied a proper policy. City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1203-04, 103 L.Ed.2d 412 (1989).

When faced with defendants' properly supported motion for summary judgment, plaintiff cannot simply rest on his conclusory allegations without submitting any significant probative evidence tending to support his complaint. Quinn, 613 F.2d at 445; Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. Accordingly, summary judgment is granted as to the County and the Police Department on the § 1983 claim.

C. SECTION 1983 CLAIMS AGAINST THE POLICE OFFICERS

a. False Arrest

Defendant police officers first state that all the statutorily defined elements of sodomy in the first degree were clearly present in this case.¹ They note that the statute does not mention any required mens rea. Therefore, they conclude, they had probable cause to arrest and prosecute Cox.

By defendants' reasoning, however, the complaining witness in this case, who had been brutally assaulted and repeatedly raped, could also have been properly arrested and prosecuted for committing sodomy; she too engaged in deviate sexual intercourse with another person by reason of compulsion. Needless to say, such an arrest and prosecution would be both absurd and against the clear intent and purpose of the statute. Indeed, New York State Penal Law § 15.15 states: "A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability." Accordingly, defendants' mere tracking of the criminal statute defining sodomy, while ignoring all exculpatory evidence regarding mens rea, was not sufficient to establish probable cause to arrest and prosecute Cox.

The police officers next contend that they are entitled to summary judgment on the § 1983 claim to the extent it is grounded in alleged violations of Cox's Fifth and Fourteenth Amendment rights because under the doctrine of qualified immunity, they are entitled to immunity from civil suit even if they lacked probable cause for the arrest and prosecution, so long as their belief concerning the presence of probable cause was not patently unreasonable. Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986); Magnotti v. Kuntz, 918 F.2d 364, 367-68 (2d Cir.1990); Warren v. Dwyer, 906 F.2d 70, 75 (2d Cir.), cert. denied, ___...