refusal to permit visitation upon the recently modified court order allowing her and Charlotte to move to Arizona. Peeker asked to see the order, and Christy produced it. After reading both the original order granting visitation to William and the modified order allowing the move to Arizona, Peeker told Christy that in his opinion William was entitled to visitation, and that it was Peeker's job to enforce the divorce judgment. Peeker further informed Christy that if she refused to give Charlotte to William, Peeker would arrest Christy. Christy asked Peeker for permission to call her lawyer, and Peeker consented. Despite several attempts, however, Christy was unable to reach her attorney. Christy then informed Peeker that she would rather be arrested than let William take Charlotte, and she asked Peeker if she could call a friend to take Charlotte. Peeker denied this request, and advised her that, if she were arrested, he would give Charlotte to William.
Peeker told Christy to help Charlotte get ready to leave, but Christy refused. Peeker then ordered eight-year-old Charlotte to pack her things and prepare to leave. While Charlotte packed, Christy told Peeker that his threat of arrest was unlawful and that the proper course of action was for William to go to court on Monday to seek a contempt order. She also told Peeker that her act of releasing her child to Peeker and William was not voluntary. In response Peeker said that he would be violating William's civil rights if he did not enforce his understanding of the divorce decree. Peeker removed Charlotte from the home and released her to her father. William did not return Charlotte to Christy for four weeks.
Christy contends that because of Sergeant Peeker's threat of arrest, she was coerced into giving up custody of her child against her wishes. Further, Christy contends that Peeker's actions caused her to miss two days of work, frustrated her plans to have Charlotte start school in Arizona in two weeks, and created financial hardship that prevented the move until April of the following year.
The defendants' version of the events, as set forth in an affidavit made by their counsel supported in part by excerpts from Christy's deposition, is in sharp conflict with Christy's affidavit regarding Peeker's actions in her home. They contend that Peeker did not threaten Christy with arrest, but rather merely examined the two court orders and warned her about the possible consequences if she did not release Charlotte to William's custody. According to the defendants, Christy's subsequent release of Charlotte was made with consent, and Charlotte herself had no objection to leaving with her father. Thus, there were no constitutional violations for which the plaintiffs are entitled to recovery.
I. Summary Judgment Standards
A motion for summary judgment will be granted when no material issue of fact remains to be decided and the undisputed facts warrant judgment for the moving party as a matter of law. Tomka v. The Seiler Corp, 66 F.3d 1295, 1299 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). If a reasonable jury could return a verdict for the non-movant, then a material issue of fact remains in contention and the motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
The burden of proving that no material issue of fact remains in dispute rests on the movant. Celotex, 477 U.S. at 322. Once a motion has been made, however, the non-moving party must set forth specific factual allegations to avoid summary judgment. Kurisoo v. Providence and Worcester Railroad Company, 68 F.3d 591, 594 (2d Cir.1995); Fahle v. Braslow, 913 F. Supp. 145, 149 (E.D.N.Y. 1996) (citations omitted). Conclusory, ipse dixit assertions will not defeat a Summary judgment motion. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
The parties may not rely on the pleadings but must support their respective positions with affidavits, exhibits, discovery responses, or deposition testimony. Celotex, 477 U.S. at 324; United States v. Rem, 38 F.3d 634, 635 (2d Cir. 1994). The non-movant need not, however, submit evidence in a form that would be admissible at trial to avoid summary judgment. Fahle, 913 F. Supp. at 149. Any ambiguities and all inferences must be drawn in favor of the non-movant. Institute for Shipboard Education v. Cigna Worldwide Insurance Co., 22 F.3d 414, 418 (2d Cir. 1994); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). Finally, this court is charged not with "issue resolution" but rather with "issue finding," and is barred from trying issues of fact. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
II. The Section 1983 Claims
Title 42, United States Code, section 1983, reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.