had taken place, and told to go down to the Malta Barracks. Id. The plaintiff was brought to the Barracks and held until the condition of the victim was learned. Meacham Dep. at 37, 41-43.
At the Barracks, the defendant learned that the victim, Lyman, was not as seriously hurt as believed, and that he would soon be released from the hospital. Meacham Dep. at 41. The defendant also learned that the plaintiff was a minor. Meacham Dep. at 42. Given what the defendant had just learned, the defendant decided not to charge the plaintiff and he was released. Meacham Dep. at 42-43.
At no time during the course of these events did the plaintiff complain of any violent or painful physical treatment by any officer. Meacham Dep. at 36. At no time did the defendant notice any evidence of physical treatment resulting in injuries to the plaintiff. Meacham Dep. at 39.
On July 9, 1993, in the presence of counsel, the plaintiff stated that a Saratoga Sheriff's Department Deputy, not the defendant had choked him, while removing him from the trailer home. July 9, 1993 Statement of Leslie Mann. Specifically, in response to the question "Trooper Meacham never put his hands on you?" the plaintiff responded "No." July 9, 1993 Statement of Leslie Mann.
The plaintiff claims at this time, through an attorney's affidavit and the "Fact" section of a Memorandum of Law in opposition to the defendant's motion, neither of which makes citations to admissible evidence, that the defendant and at least one other officer made an unauthorized entry into the plaintiff's home. The plaintiff also claims that he was threatened by the Trooper and/or officer with physical harm. The plaintiff also claims that the Trooper and/or officer grabbed the plaintiff by the neck, dragged him from his home, and nearly rendered the plaintiff unconscious from lack of air. The plaintiff then makes a final claim that he was "maliciously, willfully and violently beaten ... as well as choked, pushed and shoved. ..." Plaintiff's Memorandum of Opposition at 4.
A 42 U.S.C. § 1983 action based on the same facts at issue herein was commenced in this Court on February 3, 1994. Mann v. County of Saratoga, 94-CV-0142. That case was settled on March 12, 1996. The defendant had moved to stay this action pending a trial in Mann v. County of Saratoga. Of course, the settlement moots that request, and the court will examine the issues presented.
The plaintiff, Leslie C. Mann, a minor, by and through his parents, filed a Complaint on May 1, 1995, alleging violations of 42 U.S.C. § 1983 for alleged violations of the plaintiff's Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendment rights. The plaintiff has also alleged pendent state law claims for intentional infliction of emotional distress, assault, and battery. The defendant has moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(7), and in the alternative for summary judgment as to all claims predicated on the Fourth Amendment.
A. Standard For A Motion To Dismiss Pursuant To Rule 12(b)(6), Or In The Alternative For Summary Judgment Pursuant To Rule 56
On a dismissal motion for failure to state a claim the general rule is that the allegations in a plaintiffs complaint are deemed to be true and must be liberally construed in the light most favorable to the plaintiff Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). A complaint should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff cannot in any way establish a set of facts to sustain his claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).
If on a motion made pursuant to Rule 12(b)(6) "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56..." Fed. R. Civ. P. 12(b)(6). A motion for summary judgment should be granted "if the pleadings...together with the affidavits, if any, show that there is no genuine issue as to any material fact..." Fed. R. Civ. P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e). "In considering a motion for summary judgment, the district court may rely on 'any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994) (quoting, 10A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983)).
There must be more than a "metaphysical doubt as to the material facts." Delaware & H. R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928 (1991) (quoting, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).
Discovery is nearly completed in this case, and affidavits have been submitted. Accordingly, the Court will treat this motion as one for summary judgment. It is with the foregoing standards in mind that the Court now examines the issues presented.
B. Local Rule Of Civil Procedure 7.1(f)
Pursuant to Local Rule of Civil Procedure 7.1(f)("L.R. 7.1(f)")
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue, with specific citations to the record where the factual issues arise. All material facts set forth in the statement served by the moving party shall be deemed admitted unless controverted by the statement served by the opposing party.