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December 24, 1991


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


This is an action under 18 U.S.C. § 2520 and under 42 U.S.C. § 1983 for unlawful interception of wire communications and under 42 U.S.C. § 1983 for an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments to the federal Constitution. The plaintiffs are Maureen Falk and Joseph Russo. The individual defendants are George Sloane, John Lechmanski, James Thompson, John Gallagher, Thomas Murphy, and ten "John Does"; all these defendants were police officers for the County of Suffolk at the time relevant to this action. The "municipal defendants" are the County of Suffolk and the Suffolk County Police Department. The defendants have moved for partial summary judgment, and the plaintiffs have cross-moved for partial summary judgment. For the reasons set forth below, the motions of the defendants are granted in part and denied in part, and the motion of the plaintiffs is denied.


The facts of this case are not undisputed. From late 1983 until early 1984, defendant Sloane conducted an investigation on behalf of the Suffolk County Police Department into reports that plaintiff Russo (then an undercover narcotics officer with the Suffolk County Police Department) was selling cocaine to Mark Falk, the brother of plaintiff Maureen Falk. Defendants Gallagher and Murphy appear to have been Sloane's supervisors. Pursuant to a court order, Sloane arranged a pen register in his own basement to monitor the calls placed from the telephone of Mark Falk (at the time, the plaintiffs lived together, and Mark Falk did not live with them). Defendant Lechmanski helped Sloane set up the pen register, and Lechmanski demonstrated to Sloane how the pen register could be converted into a wiretap. It appears that the Suffolk County Police Department did not obtain a warrant for the use of such a wiretap to record telephone calls on that line. Rather, the defendants maintain that informants were to place orders for cocaine with Mark Falk and that the police were then to monitor the pen register to determine whether Mark Falk would call Russo's home — presumably, to relay the request for cocaine.

Sometime in December of 1983 or January of 1984, defendant Thompson visited Sloane's house. Rule 3(g) Statement of Defendant Sloane ¶ 6. Sloane maintains that, during his visit, Thompson converted the pen register into a wiretap; however, Sloane contends that he disconnected the wiretap after Thompson left and that no telephone conversations were recorded. Affidavit of James F. Hagney ¶¶ 5, 15. Thompson and the other defendants argue that Thompson did not convert the pen register into a wiretap and that, as such, no telephone calls could have been recorded. Affidavit of Dennis E. Milton ¶ 10. Curiously, however, Sloane has stated that, after disconnecting the wiretap, he destroyed the tape cassettes on which any intercepted calls would have been recorded. Affidavit of June German at 5-6.

The precise date and time of Thompson's visit to Sloane's house is unclear; as such, the plaintiffs have been unable to demonstrate directly that they spoke to Mark Falk on the telephone when the alleged wiretap was operative. However, a telephone log of calls placed from the home of Mark Falk from December 21, 1983 until January 9, 1984 — a period of just under three weeks — shows 24 calls to the home of the plaintiffs. Exhibit A to Plaintiffs' Reply Affirmation. Further, plaintiff Russo alleges that defendant Thompson and Ray Perini, an assistant district attorney, told him that "they had heard something . . . on a tape" concerning Russo's alleged selling of cocaine. Affidavit of Joseph Russo ¶ 3.

On February 26, 1984, Suffolk County police officers arrested Mark Falk for the sale of cocaine. The next day, defendant Sloane, another police officer, and Mark Falk went to the home of the plaintiffs. Maureen Falk, who was home at the time, contends that Sloane forcibly entered her house, physically and verbally abused her, searched her house, and coerced her to accompany him to police headquarters. Affidavit of Maureen Falk ¶ 3. Sloane contends that Maureen Falk consented to the entry of her home, that he neither physically nor verbally abused her, and that she went to the police station willingly. Affidavit of James F. Hagney ¶ 20. He argues that, in fact, Maureen Falk attempted to strike him and that an ensuing struggle caused him and the plaintiff to fall onto a sofa bed. He concedes that he prevented Maureen Falk from completing a telephone call to Joseph Russo at that time.

Plaintiff Maureen Falk brought this action in 1985; her first cause of action, under 18 U.S.C. § 2520 and under 42 U.S.C. § 1983, is against all defendants for alleged unlawful wiretapping. Her third cause of action, under 42 U.S.C. § 1983, is against defendant Sloane for alleged unlawful search and seizure. Her second and fourth causes of action seek punitive damages under the first and third causes of action. Plaintiff Joseph Russo brought his suit in 1989. His first cause of action parallels Maureen Falk's first cause of action; his second cause of action seeks punitive damages for the first cause of action. By earlier order, this court consolidated these two suits.

All defendants have now moved for summary judgment on the causes of action that concern alleged wiretapping of the plaintiffs' telephone conversations; they contend that the plaintiff has failed to produce any evidence of any recorded or intercepted conversations. Also, they argue that they are protected by the doctrine of qualified immunity. Defendant Sloane argues that he is also protected by qualified immunity on the matter of his alleged unlawful search and seizure of Maureen Falk. The County of Suffolk and the Suffolk County Police Department further maintain that the plaintiffs are unable to establish Monell liability against the municipality. Finally, the plaintiffs oppose the defendants' motions for partial summary judgment, and Maureen Falk cross-moves for summary judgment on her Section 1983 search and seizure claim against Sloane.


Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, Rule 56(c) sets forth as clear conditions for summary judgment: (1) the absence of genuine dispute as to any material fact; and (2) entitlement to judgment as a matter of law. These requirements are plainly conjunctive. Further, Rule 56(e) provides that the nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleadings. . . ." Rather, the response of the nonmoving party to the motion for summary judgment must set forth, by affidavit or exhibit, "specific facts showing that there is a genuine issue for trial."

The Supreme Court has attempted to define what constitutes a "genuine" issue of material fact: In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), the Court stated that a "dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Thus, "if the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511. Still, in the adjudication of a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511. Finally, in that summary judgment "deprives a party of its day in court and the right to present its case to the jury, the district court in examining the record must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Gibson v. American Broadcasting Companies, Inc., 892 F.2d 1128, 1132 (2d Cir. 1989).

However, the existence of a genuine issue of fact does not in itself defeat a motion for summary judgment; rather, the issue must be one of a material fact. As the Court stated in Anderson, 477 U.S. at 248, 106 S.Ct. at 2510: "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." It is necessary, then, to examine the substantive law that governs the plaintiffs' claims in order to determine which facts are material; and it is ...

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