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NIEMANN v. WHALEN

January 2, 1996

JOANNE NIEMANN, Plaintiff, against WILLIAM WHALEN, sued in his official and individual capacities, and FLEET BANK, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 Plaintiff Joanne Niemann has brought this action under 42 U.S.C. § 1983 against defendants William R. Whalen, a New York State Police Investigator, and Fleet Bank, plaintiff's former employer. Each defendant has moved for summary judgment on all claims. For the reasons set forth below, defendants' motions are granted in part and denied in part.

 BACKGROUND

 Unless otherwise noted, the following facts are undisputed. Fleet Bank hired plaintiff as a teller in February 1988. By June 1992, plaintiff had been promoted to the position of teller supervisor and assigned to the Grahamsville branch. Only four employees regularly worked in that branch: plaintiff, Penny Dean and Laurie Decker as tellers and Martha Ahrens as branch manager. On June 29, 1992, plaintiff worked a full day at the branch and, as teller supervisor, was responsible for the money in the bank's vault. Plaintiff and Dean counted the money in the vault at the end of the day. They did not report a discrepancy.

 On June 30, 1992, plaintiff called the branch to inform her co-workers that she would not be coming in that day, allegedly because one of her children was sick. Ahrens also did not go to work that morning. Cindy Balanovich, a floating branch manager, took over for Ahrens. According to standard bank procedure when the teller in charge of the vault changes, Balanovich and Decker counted the money in the vault. They discovered a bundle of twenty dollar bills that was smaller than all of the other bundles of twenties, which contained $ 10,000 each. When Balanovich and Decker counted the short bundle, they ascertained that $ 3,220 was missing. Standard bank procedure requires that a bundle of bills be marked with the stamp of the teller who put the bundle together, the date of that count and the initials of the teller. The short bundle was stamped with Dean's teller stamp and dated June 23, 1992, but had not been initialled by anyone.

 Upon discovering that the money was missing, Balanovich called Frank Connelly, the assistant security officer for Fleet Bank. Connelly contacted George Whitmore, the district manager responsible for the Grahamsville branch, and then went to the branch to question Dean, Decker and Balanovich. Each of them denied knowing anything about the missing money. Fleet Bank reported the loss to the State Police on June 30, and Whalen was assigned to investigate. Shortly thereafter, he spoke to Whitmore and Connelly concerning the investigation that the bank had done up to that point.

 Plaintiff remained home from work on July 1, but reported to the branch on July 2. Ahrens told her that Whitmore wanted to see her at the bank's branch office in Liberty. When plaintiff arrived at Whitmore's office, he told her that she was being placed on a paid leave of absence. According to plaintiff, he explained that the purpose of the leave was to care for her daughter. According to Whitmore, he told plaintiff that she was being placed on leave because she had been responsible for the vault immediately prior to the discovery of the discrepancy. Later that day, Whitmore and Connelly scheduled a meeting with Niemann at the Liberty branch for the next day. Connelly notified Whalen and asked him to be present. According to plaintiff, Whitmore told her that she needed to come to Liberty to look over some memoranda concerning her impending transfer to a Fleet Bank branch in Saratoga. *fn1" Whitmore testified at his deposition that he could not remember exactly what he told plaintiff about the purpose of the meeting, but that he believed he told her that it concerned the problems at the Grahamsville branch.

 Plaintiff arrived at the Liberty branch on the morning of July 3 with her children. Whitmore told her that he was not yet ready to proceed and that she should take the children to a sitter and then go home to wait for him to call her. After receiving a call from Whitmore indicating that she should return, plaintiff arrived at the Liberty branch about 11 a.m. to find Whalen and Connelly with Whitmore in his office. At Connelly's request, Niemann went into a nearby conference room to wait. About twenty minutes later, Whalen and Connelly entered the room. Whalen was in plainclothes.

 What happened next is hotly disputed. The conflicting versions presented here are taken from transcripts of the depositions of the individuals concerned and from an affidavit submitted by plaintiff.

 Plaintiff contends that Connelly introduced Whalen to her as "a friend of mine" and that Whalen then gave her his name, but did not inform her that he was a police officer. She states that Connelly controlled the ensuing interview and that he pressured her to admit that she had taken the money from the branch despite her denial of any involvement in or knowledge of the theft. He allegedly threatened that if she did not confess, he would tell her husband's employer that her husband helped her steal the money, have her house searched in front of her children, have her "sent away" and have her children taken away from her. Plaintiff asserts that Connelly called Balanovich into the room with a bundle of money that he claimed was the short bundle from the vault and tried to get plaintiff to touch the money. She states that Connelly refused to allow her to leave the room, to use the phone or to speak to a lawyer. She claims that Connelly was cursing and yelling and that at one point he slammed his fists down on the table when he said that she could not leave. According to plaintiff, Connelly told her that the bank simply needed someone to confess but that she would not be arrested or prosecuted if she did so. Plaintiff asserts that throughout the questioning, Connelly would turn to Whalen to seek confirmation that they could follow through on his threats, and Whalen would agree. At about 2:45 p.m., plaintiff agreed to confess. Whalen typed out a confession that plaintiff maintains she signed without reading. She left the Liberty office immediately thereafter. She contends that she is certain of the time because part of the Liberty branch office was closed for the day when she left.

 Defendants present very different versions of the questioning. According to Whalen, Whitmore introduced him to Niemann as a state police officer. Whalen asserts that at the beginning of the interview, he displayed his police credentials and read plaintiff her Miranda rights. He and Connelly then questioned plaintiff, with Connelly doing most of the talking. Whalen states that neither he nor Connelly threatened Niemann in any way, that she never asked to leave the room, that she could have left at any time she wished to, that she never asked to use a telephone or to speak to a lawyer and that no one promised her that she would not be prosecuted if she confessed. He claims that after about an hour and fifteen minutes of questioning, plaintiff confessed to taking the money. He then typed the confession. Plaintiff read it, made one correction and then signed it. He asserts that she left about 12:15 or 12:30 p.m. According to Whalen, plaintiff stated that she took the money because she needed it to make a down payment on a house.

 Connelly's account of the questioning session differs from Whalen's on certain points. Connelly agrees with Whalen that Whitmore was present when Niemann arrived, but that only Connelly, Niemann and Whalen were in the room when Connelly began the questioning. Connelly states that he introduced Whalen to plaintiff and identified Whalen as a police officer. According to Connelly, he informed Niemann that she was being questioned about the missing money. He states that she confessed ten or fifteen minutes after the interview began. Connelly asserts that Whalen informed plaintiff of her Miranda rights at the time that she indicated she would confess. Like Whalen, Connelly claims that no one threatened plaintiff in any way, that she never asked to leave the room and that she never asked to use the phone or to speak to a lawyer. Connelly maintains that he never promised plaintiff that she would not be prosecuted if she confessed. Connelly states that he saw plaintiff read and sign the confession that Whalen had typed for her, although he did not remember seeing her make any corrections. He asserts that plaintiff explained that she took the money for a down payment on a house and that she offered to pay it back to the bank. He estimates that the entire interview session lasted forty-five minutes.

 The parties do not dispute that plaintiff left the bank shortly after signing the confession and went home. According to Whalen, Whitmore called Whalen on July 8 and indicated that the bank wanted to press charges against Niemann. Whalen took supporting depositions from Whitmore and Dean and completed a felony information charging Niemann with grand larceny in the third degree. *fn2" Whalen and Niemann made arrangements for her to surrender herself on July 9. She went to the police barracks that morning to be fingerprinted and photographed. Whalen then drove her to the chambers of the Town Justice, where she was arraigned and released on a personal recognizance bond. Plaintiff pled not guilty. On July 21, 1993, on plaintiff's motion and without opposition from the District Attorney, the Town Justice dismissed the charge against plaintiff on the ground that the District Attorney had failed to prosecute the case in a timely fashion.

 Plaintiff filed this § 1983 action on November 3, 1993. Plaintiff contends that Whalen, acting as an individual and in his official capacity, and Fleet Bank, acting through its employees, conspired to falsely imprison, falsely arrest and maliciously prosecute plaintiff in violation of her constitutional rights. Plaintiff also alleges that defendants conspired to coerce her confession. Defendants deny that plaintiff was threatened or coerced in any way and assert that their actions in interviewing, arresting and prosecuting plaintiff were lawful and reasonable under the circumstances. In addition, defendant Whalen argues that he is entitled to the protection of qualified immunity. Defendants have moved for summary judgment on all of plaintiff's claims.

 DISCUSSION

 Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Supreme Court has explained that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those [materials] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In order to defeat summary judgment, the nonmoving party must "go beyond the pleadings and . . . designate 'specific facts showing that there is a genuine issue for trial.'" Id., at 324. No genuine issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict for that party. See Anderson, 477 U.S. at 248-49. In evaluating whether a genuine question of material fact exists, however, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id., at 255.

 I. Section 1983

 In order to maintain an action under 42 U.S.C. § 1983, two essential elements must be present. The conduct complained of must have been committed by a person acting under color of state law and must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States. See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). We will address each of these elements in turn.


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