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June 18, 1996

LESLIE C. MANN, An Infant, by his Parent and Natural Guardian, DIANE PARENT, Plaintiffs, against STEVEN MEACHEM, Defendant.

The opinion of the court was delivered by: MCAVOY


 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.

 The plaintiff moved before the Magistrate Judge to consolidate this action with Mann v. County of Saratoga, 94-CV-0142. That case was predicated upon the same facts and circumstances giving rise to this action. On February 16, 1996, the plaintiff's motion was denied.

 The defendant, New York State Trooper Steven Meacham, was deposed as a non-party witness in Mann v. County of Saratoga, 94-CV-0142. According to the deposition of the defendant Meacham, the claims alleged herein arise out of an incident that occurred on December 13, 1992. On that date, members of the Saratoga Sheriff's Department and New York State Troopers went to the home of Dan Hollenbeck at approximately 5:30 a.m. in response to a 911 call. There they learned that a fight had occurred in the near vicinity of the plaintiff's home the night before. Meacham Dep. at 9-10. An individual named Daniel Lyman had been assaulted and rendered unconscious. Meacham Dep. at 9. Lyman was still unconscious and was bleeding from the head when the defendant Meacham arrived at the home of a Dan Hollenbeck. Id. The defendant learned that an individual named Michael Bradt, allegedly a friend of the plaintiff, had been involved in the fight at the plaintiff's home. Meacham Dep. at 10. The defendant determined that a felony assault had occurred resulting in serious injuries, and he commenced a further investigation, i.e., went to the plaintiff's home and tried to find Bradt. Meacham Dep. at 11-12.

 On the way to the plaintiff's home, the defendant encountered and requested accompaniment from Saratoga Sheriff's Deputy Doherty. Meacham Dep. at 15-17. The two officers approached the plaintiff's trailer home door, knocked, and the plaintiff answered. Meacham Dep. at 22-23. The plaintiff invited the defendant inside. Meacham Dep. at 25. Two young woman were seated in the trailer's main room, and no one else was visible to the defendant. Meacham Dep. at 24-25. In response to the defendant's questions, the plaintiff stated repeatedly, in sum and substance, that his parents were not at home, that no other individuals other than those present in the main room were in the trailer, that he did not know Michael Bradt, that he did not know where Michael Bradt lived, and that he knew nothing about a fight in front of his home on the previous night. Meacham Dep. at 25.

 The defendant then heard noises from behind an interior door that lead to a bedroom, and noticed the door move. Meacham Dep. at 26. The defendant looked behind the door and observed an individual who identified himself as Michael Bradt. Meacham Dep. at 27. The defendant then asked Bradt to extend his hands to be placed in handcuffs. Meacham Dep. at 31. Bradt complied with the defendant's request. Meacham Dep. at 28. However, the plaintiff began to yell obscenities and, in general, object to the arrest of Bradt. Meacham Dep. at 28-29. There was no physical contact between the defendant and the plaintiff Meacham Dep. at 31. Nevertheless, the defendant asked Deputy Doherty to remove the plaintiff from the trailer. Meacham Dep. at 32. The defendant believed that the plaintiff was hindering his attempted arrest of someone suspected of committing a felony. Meacham Dep. at 32.

 The defendant then removed Bradt from the trailer, and placed him in the defendant's vehicle. Meacham Dep. at 34. Deputy Doherty placed the plaintiff in the Deputy's vehicle for transport to the Trooper Barracks in Malta, New York. Meacham Dep. at 32. At this point, the plaintiff's parents emerged from the trailer. Meacham Dep. at 36. The plaintiff's parents were instructed as to what 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.

 No separate statement in compliance with L.R. 7.1(f) has been provided by the plaintiff. Therefore, the Court must deem, as admitted those facts set forth in the defendant's 7.1(f) statement. Accordingly, the Court grants the defendant's motion to dismiss all Fourth Amendment based claims.

 Notwithstanding the foregoing, the Court will examine the defendant's summary judgment motion as if a L.R. 7.1(f) statement had been provided as mandated by the Local Rules. For the reasons that follow, the Court finds that even if the plaintiff had complied with L.R. 7.1(f), the Court would have granted summary judgment based on the failure of the ...

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