Doe v. Smith, 86 Civ. 9222 (GLG).
| Citation | 704 F. Supp. 1177 |
| Decision Date | 03 October 1988 |
| Docket Number | No. 86 Civ. 9222 (GLG).,86 Civ. 9222 (GLG). |
| Parties | John DOE, Plaintiff, v. Marjorie J. SMITH, Assistant District Attorney, Dutchess County, New York, William V. Grady, District Attorney, Dutchess County, New York, J.J. Chickering, Detective, Dutchess County, New York, The County of Dutchess, New York, Al Smith, Detective, Town of Poughkeepsie, New York, Town of Poughkeepsie, New York, Ruth Cummings, Susan E. Benson and Vassar College, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Matays Hughes & Brown, New York City (Rodney A. Brown, of counsel), for plaintiff.
Ian G. MacDonald, Co. Atty., Dutchess County, Poughkeepsie, N.Y. (Keith P. Byron, Sr. Asst. Co. Atty., of counsel), for defendants, Marjorie J. Smith, William V. Grady, J.J. Chickering and County of Dutchess.
Spitz, Spitz & Fedorchak, Poughkeepsie, N.Y. (Andrew L. Spitz, of counsel), for defendants, Town of Poughkeepsie and Detective Alfred Smith.
Semel, Boeckmann, Diamond, Schepp & Yuhas, New York City (Michelle Schuster, of counsel), for defendants, Ruth Cummings, Susan E. Benson and Vassar College.
Plaintiff, John Doe, commenced an action alleging violations of his common law and constitutional rights to be free from malicious prosecution, 42 U.S.C. § 1983, and abuse of process, which he contends arose out of his prosecution and subsequent acquittal for committing an act of public lewdness, N.Y.Penal Law § 245.00. The case is before the court on the defendants' motion for dismissal, Fed.R.Civ.P. 12(b)(6), or alternatively, for summary judgment, Fed.R.Civ.P. 56, and the plaintiff's motion to compel discovery with respect to certain defendants, Fed.R.Civ.P. 37, for a protective order, Fed.R.Civ.P. 26(c), and for leave to replead, Fed.R.Civ.P. 15, if it becomes appropriate. The defendants also seek attorneys' fees, 42 U.S.C. § 1988, and sanctions, Fed.R.Civ.P. 11.
Because matters outside the pleadings were submitted to and considered by the court, the defendants' motion for dismissal is treated as one for summary judgment. Fed.R.Civ.P. 12(c). The defendants' motion for summary judgment is granted as to the § 1983 claim and the state law claim of malicious prosecution. We decline to retain jurisdiction of the sole remaining claim, a state law claim alleging abuse of process and, consequently, it is dismissed. The defendants' motion for fees, 42 U.S.C. § 1988, is denied, as is their motion for sanctions, Fed.R.Civ.P. 11. Plaintiff's motion is denied in all respects.
On August 5, 1983, between approximately 2:30 pm and 2:45 pm, defendants Ruth Cummings and Susan Benson, employees of Vassar College, stated that they observed a white male exposing himself and masturbating on the grounds of Vassar College. Cummings and Benson reported the incident to the Vassar College Security Office at 2:55 pm which, in turn, reported the occurrence to the Town of Poughkeepsie Police Department. Cummings and Benson initially described the alleged perpetrator as:
Complaint Report, Exh. E. to Doe Aff'd.
Although the information did not appear in the Complaint Report filed with the Vassar College Security Office, nor in the police report, Benson told the police that the alleged perpetrator had a severely pockmarked face. At plaintiff's trial, Benson also described the alleged perpetrator as being "slender but with bulges on his hips". Brown Aff'd at 5. Also at plaintiff's trial and during depositions in support of the instant motions, the alleged perpetrator was described as wearing a light colored shirt, a tie and a hat.1
Plaintiff is 6 feet 2½ inches tall, 185 pounds, contends he has worn rimless gold framed eyeglasses since 1970, and as a practicing attorney, wears a white or light shirt and necktie during working hours. Plaintiff, who was 44 years old at the time of the alleged incident, has a clear, smooth-skinned face.
Shortly after Cummings and Benson reported the alleged incident, a suspect who fit the description given to the Vassar Security Office was seen driving away from the area of the incident by a Town of Poughkeepsie police officer. The officer noted the license plate number and traced the driver to his home where he was interviewed. The suspect claimed he had gone to the campus at 2:45 pm to drop off his wife at her workplace. The police officer who interviewed him concluded the suspect did not fit the description given by Cummings and Benson as the "subject is 5'11" and weighs 220 pounds, thus, excluding him from the picture due to his size. The girls gave a description of tall and thin. It was (the police officer's) estimation that he was by no means thin." Police Investigation Report, Exh. F to Doe Aff'd.
A few days after the alleged incident, on August 9, 1983, at approximately 1:00 pm, plaintiff Doe, who was and had been for several years, a member of the Vassar College Summer Tennis Program, went to the reservation desk at the Vassar College tennis courts to reserve a tennis court for that evening. As he was leaving the reservation desk, Doe was seen by Cummings and Benson who suspected him of being the man they had witnessed on August 5, 1983. In order to observe him more closely, Cummings and Benson approached the plaintiff and Cummings asked him for the time. Although Cummings was less sure than Benson, the women reported to Brian Becker, the attendant on duty at the tennis courts, that they thought that the man who had just left the reservation desk was the one they had observed exposing himself a few days earlier. The plaintiff, who was known by name to Becker because he regularly played tennis at the Vassar College tennis courts, was followed back to his office by Cummings and Benson and two companions. The Town of Poughkeepsie Police were notified that there was a possible identification of the alleged perpetrator.
Plaintiff Doe was aware he had been followed after he left the tennis courts and he phoned the desk attendant at the tennis courts to inquire why he had been followed. He was told that Cummings and Benson had identified him as the man they had seen exposing himself a few days earlier. Thereafter, Doe telephoned the Town of Poughkeepsie Police, whereupon detective Alfred Smith asked Doe to come to the police station to discuss the recent events, and plaintiff Doe agreed to do so.
Plaintiff arrived at the police station shortly after 5:00 pm and was escorted to detective Smith's desk. Smith advised Doe of his constitutional rights and described the act Cummings and Benson claimed to have witnessed. Beyond a description of the act, Doe was refused additional details about the incident.
On that same day, Susan Benson signed a misdemeanor complaint charging Doe with having committed the act of public lewdness she and Cummings observed. The misdemeanor complaint was supported by affidavits from Brian Becker and Ruth Cummings.
Later that day, Doe spoke with Brian Becker at the tennis courts and obtained sufficient information about the alleged incident to enable him to identify the time and place it had occurred. Doe telephoned detective Smith on August 10, 1983, and told him that on the day in question, August 5, 1983, he was in his law office with a client. Specifically, plaintiff contended he had an appointment in his office with a client, Nicholas Liguori, owner of a delicatessen in Poughkeepsie, which lasted from approximately 2:05 pm to 4:15 pm. He also stated that his aunt and his mother, who was working as his secretary that day, were at his office and they, in addition to Liguori, could be contacted to verify his alibi.
The investigation conducted by the Town of Poughkeepsie Police extended beyond the taking of the statements from the complaining witnesses. The police report indicates that on August 10, 1983, detective Smith spoke with Nicholas Liguori, who confirmed that he was at the office of plaintiff Doe from 2:00 pm until 4:00 pm on August 5, 1983, and that Doe was never absent for longer than five to ten minutes. Brian Becker told the police that when Doe questioned him on August 9, 1983, about the incident, that "Doe was not wearing the black rimmed glasses that he had worn earlier, but was wearing gold rimmed glasses.", Police Investigation Report, Exh. F to Doe Aff'd., a statement he later disavowed in his affidavit of July 1987, id., Exh. A. Moreover, detective Smith asked Doe to take a polygraph test which, initially, he said he would take it, but later he refused. The Office of the District Attorney was informed of the alleged event and the possible identification of the suspect. An assistant district attorney, Lou Viglotti, told detective Smith that the District Attorney would seek a court order for a lineup to be viewed by defendants Cummings and Benson, a lineup to include plaintiff Doe. For reasons not specified in the papers before us, the lineup was not conducted. As a result of the investigation by the Town of Poughkeepsie Police, a decision was made to seek a criminal summons.
The misdemeanor complaint was forwarded to Town Justice Paul Sullivan of the Town Justice Court for review and issuance of a criminal summons. Town Justice Sullivan issued the criminal summons and it was forwarded to Doe, who presented himself to the Town of Poughkeepsie Police on August 21, 1983, and was released without bail after being booked.
The plaintiff continued to dispute the testimony of the two eyewitnesses, Cummings and Benson, and to maintain his innocence. Doe's attorney at that time, Paul Goldstein, in an effort to prove the innocence of his client, arranged to have an interview conducted with an investigator from the District Attorney's Office. The purpose of the interview was to submit to a voice stress analysis examination. J.J. Chickering, an investigator from the District Attorney's...
To continue reading
Request your trial
-
Young v. Suffolk County
...defendants, Joseph Quatela, and the state actor defendants that would be sufficient “to cloak them with state action.” Doe v. Smith, 704 F.Supp. 1177, 1188 (S.D.N.Y.1988). These same allegations are sufficient to cloak the Young defendants and Quatela with state action for the purpose of th......
-
Kraft v. City of New York, 07 Civ. 02978(DC).
...defendants violated any constitutional rights of plaintiff, his claim against the HHC under Monell is dismissed. See Doe v. Smith, 704 F.Supp. 1177, 1188 (S.D.N.Y.1988) ("There can be no municipal liability where no constitutional violations are found to have occurred."); Vassallo v. Lando,......
-
Murphy v. City of Rochester
...of probable cause which has not been rebutted. Consequently, the City cannot be found liable under Monell. See Doe v. Smith, 704 F.Supp. 1177, 1188 (S.D.N.Y.1988) (“Because the court found no violation by defendant detective Smith, there are no grounds for establishing liability against the......
-
Scheiner v. Wallace
...Cf. Spear v. Town of West Hartford, 954 F.2d at 68 (only one contact between city attorney and private defendants); Doe v. Smith, 704 F.Supp. 1177, 1189 (S.D.N.Y.1988) (no evidence alluded to that connects private defendants with the district attorney beyond a sole pretrial interview.) What......