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IPPOLITO v. MEISEL

March 10, 1997

GERALDINE R. IPPOLITO, Plaintiff, against WILLIAM J. MEISEL, GARRY A. SUTCLIFFE, SHAWN J. BARRY, THOMAS McCOSKERY, ROBERT W. KELSO, BRIAN KEVIN QUINN and EDWARD S. STOCKHOFFER, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Sr. D.J.:

 The above-captioned case is before this court on defendants' motion for summary judgment, and on plaintiff's cross-motion for summary judgment. *fn1" For reasons discussed below, defendants' motion is granted.

 BACKGROUND

 The following facts are not seriously in dispute. Plaintiff, pro se, was stopped for speeding and operating an unregistered motor vehicle in the Village of Walden, New York on August 5, 1995 by defendant Gary Sutcliffe, a police officer employed by the Village. Plaintiff asserts that Sutcliffe "falsely arrested" her "in violation of his oath of office" and "without probable cause or warrant for arrest" by "criminally trespassing on private property" owned by plaintiff's daughter. Pl. Br. at 1.

 Plaintiff received a summons to appear in court to answer to the charges, but failed to appear. Plaintiff claims that she "made appearances . . . via U.S. Mail on August 9, 1995 and August 21, 1995." Id. On September 29, 1995, plaintiff attempted to file a "Refusal for Cause" in the Village of Walden Justice Court. Village Justice William Meisel denied plaintiff's submission. That same day, plaintiff sent by certified mail the same "Refusal for Cause" to the Village of Walden Justice Court. Thereafter, Justice Meisel issued a warrant for plaintiff's arrest for failing to appear to answer the charges of speeding and operating an unregistered motor vehicle. Plaintiff challenges the validity of the warrant for her arrest on the grounds that (1) the warrant was issued without probable cause, (2) the warrant was issued for an "infraction," and not a for "crime," (3) the warrant lacked a description of the plaintiff and failed to name a location, and (4) the warrant was an "incomplete instrument."

 On October 18, 1995 Village police officers attempted to serve the warrant and take the plaintiff into custody at the home of plaintiff's daughter in the Town of Montgomery. *fn2" Plaintiff refused to open the door to the home and refused to be taken into custody.

 On October 19, 1995, defendant Shawn Barry, a Village police officer, swore out a misdemeanor complaint in the Town charging plaintiff with resisting arrest. Town Justice Robert Kelso reviewed the Misdemeanor Complaint and the prior Warrant of Arrest issued by Justice Meisel, and issued a second Warrant of Arrest in the Town charging plaintiff with resisting arrest. Officers Brian Quinn, Edward Stockhoffer, Shawn Barry and Thomas McCoskery effected the arrest pursuant to the warrant, and plaintiff was arraigned the same day before Village Justice Meisel on the first warrant and Town Justice Kelso on the second warrant. She ultimately was released on bail in the first instance and on her own recognizance in the second. On December 6, 1995, Justice Meisel conducted a traffic trial at which plaintiff was convicted of speeding and operating an unregistered motor vehicle. A fine was assessed which remains unpaid to date. Plaintiff has not yet appeared with regard to the charge of resisting arrest in the Town of Montgomery.

 On February 8, 1996, plaintiff filed in this court a "Complaint for Civil Rights Damages and Violations of Oaths of Office" against Sutcliffe (the Village of Walden Officer issuing the original tickets), Justice Meisel (the Walden Village Justice who issued the arrest warrant for plaintiff's failure to appear to answer the traffic charges), Officer Barry, (the Officer who attempted to effect Meisel's warrant and swore out a complaint for resisting arrest), Justice Kelso (the Montgomery Town Justice who issued a warrant for resisting arrest) and Officers Quinn, Stockhoffer, and McCoskery (the Officers who executed Kelso's warrant). Although it is difficult to discern the precise claims plaintiff seeks to bring, she recites that 42 U.S.C. § 1983 ("Civil action for deprivation of rights"), § 1985 ("Conspiracy to interfere with civil rights") and § 1986 ("Action for neglect to prevent" (a violation of § 1985)) were violated by, inter alia, the warrants, her arrest and Judge Meisel's refusal to accept her "Refusal for Cause." She asserts that various of her constitutional rights, guaranteed by the 1st, 4th, 5th, 6th, 7th, 8th, 10th and 14th Amendments were violated. Defendants brought a motion for summary judgment under FED. R. CIV. P. 56 arguing that they are entitled to either absolute or qualified immunity from liability. We analyze the various claims against the individual defendants below.

 DISCUSSION

 I. SUMMARY JUDGMENT STANDARD

 Summary judgment is appropriate 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." FED. R. CIV. P. 56(d). A fact is material only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

 The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] 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). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. Ltd v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), but must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1988).

 II. OFFICIAL CAPACITY CLAIMS

 A. Damages claims

 We note at the outset that it is unclear from the complaint whether plaintiff intends to sue defendants in their individual or official capacities. It appears likely that her complaint only states a claim against defendants in their individual capacities since she has asked for punitive damages, Compl. P 50(2), and the defendants have responded by raising absolute and qualified immunity defenses. See Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (Where complaint seeks punitive damages unavailable against a state, and defendants defend on qualified immunity grounds, a defense unavailable in official capacity suits, this suggests parties viewed the suit to be in individual capacities only). However, guided by the Second Circuit's opinion in Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993), we will treat plaintiff's pro se complaint as attempting to bring claims against all defendants in both capacities.

 To the extent that a state official is sued in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke Eleventh Amendment immunity. Id. at 529. To the extent he is sued for damages in his individual capacity, he is not entitled to invoke the Eleventh Amendment, but where applicable, may rely upon the doctrines of absolute or qualified immunity. Id. Although we treat plaintiff's complaint as attempting to sue defendants in their official capacities as well as individually, it is not necessary to allow plaintiff to amend her complaint to specifically include these claims because such claims would be barred as a matter of law. *fn3"

 The Eleventh Amendment bars suits against the state for money damages to be paid from the state's treasury, even if an individual officer is named as defendant. Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1944). Thus, any damage claims against Justices Meisel and Kelso would be barred by the Eleventh Amendment, since they are state officials. See Sassower v. Mangano, 927 F. Supp. 113, 120 (S.D.N.Y. 1996) (suit against presiding and associate Justices of the Supreme Court of New York, Second Department barred); Jaffer v. Chemical Bank, 1994 WL 392260 *2 (suit against Judge of the Civil Court of the City of New York for money damages in official capacity is essentially a suit against the state); Birnbaum v. Rodriquez, No. 94-5180, 1995 WL 74540 at *2 (E.D.N.Y. Dec. 4, 1995) (claims against Judge of Housing Court of City of New York barred); Baker v. Hardy, 1989 U.S. Dist. LEXIS 3285 at *6, 1989 WL 32097 at *2 (N.D.N.Y. 1989) (claims against state administrative law judge barred). *fn4"

 Any damage claims against the police officers in their official capacities would also be barred, not by the Eleventh Amendment, see Draper v. Coombs, 792 F.2d 915, 919, n.5 (since the Eleventh Amendment does not protect local government bodies or local officials, city police officers are not afforded Eleventh amendment immunity), but by the requirement that a municipal policy or custom must be proven in order for a municipality to be liable under § 1983 for the actions of its officers. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Because plaintiff has made no allegations, and we see no basis for concluding, that the officers' allegedly unconstitutional actions constituted a policy or practice of their respective municipalities, plaintiff has not, and apparently cannot state a claim for damages against the individual officers in their official capacities.

 B. Request for Declaratory Judgment

 Plaintiff requests that two types of declaratory judgment be entered against defendants. Although the Eleventh Amendment bars damage claims against state officials acting in their official capacity, federal courts can enjoin state officers acting in their official capacity, as long as the injunction only governs the officer's future conduct and a retroactive remedy is not provided. Russell v. Dunston, 896 F.2d 664, 668 (2d Cir.), cert. denied, 498 U.S. 813, 112 L. Ed. 2d 26, 111 S. Ct. 50 (1990). This reasoning has apparently been extended to declaratory judgments. See Pulliman v. Allen, 466 U.S. 522, 544, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1983) (dissenting opinion). However, the Supreme Court has held that "the Eleventh Amendment bars a retrospective declaration of a violation of federal law where there is ...


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