whom the actor has an unlawful animus...." Plaintiff's Memorandum of Law at 17.
The U.S. Constitution affords protection to two distinct types of association: "intimate association" and "expressive association." City of Dallas v. Stanglin, 490 U.S. 19, 23-25, 109 S. Ct. 1591, 1594-95, 104 L. Ed. 2d 18 (1989). The freedom of intimate association is defined as those relationships that may be classified as familial in nature, as involving "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life." Roberts v. United States Jaycees, 468 U.S. 609, 620, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984). Examples of such relationships include the creation and sustenance of a family, id., marriage, Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978), the begetting and bearing of children, Carey v. Population Services Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977), cohabitation with relatives, Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977), and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925).
"Expressive association" protects the right of individuals to associate for purposes of engaging in activities protected by the First Amendment, such as speech, assembly and the exercise of religion. It is otherwise known as "political" associational rights. Sanitation and Recycling Industry, Inc. v. City of New York, 107 F.3d 985, 996 (2d Cir. 1997). In Dallas v. Stanglin, 490 U.S. 19, 25, 104 L. Ed. 2d 18, 109 S. Ct. 1591 (1989), the Supreme Court stated, "It is possible to find some kernel of expression in almost every activity a person undertakes - for example ... meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." The Supreme Court expressly rejected a right of association of persons solely for recreational pursuits.
The plaintiff's complaint does not set forth any allegations that he and the two passengers travelling with the plaintiff, Krishna Collie and Howard Buford, were involved in an activity other than in a social capacity. Nor is this alleged in the affidavits of the plaintiff or the two passengers submitted in opposition to the defendant's motion for summary judgment. Therefore, the defendant's motion for summary judgment dismissing the plaintiff's claim for violation of the plaintiff's right to free association guaranteed by the First Amendment is granted.
C. State law claims
In addition to the constitutional claims reviewed above, the plaintiff has alleged state law claims for: (1) false imprisonment; (2) assault and battery; (3) negligence; and (4) intentional infliction of emotional distress. The defendant asserts that these state law claims, based upon diversity jurisdiction, cannot be pursued in federal court. The defendant maintains that such claims must have been brought in the New York State Court of Claims after the timely filing of a notice of claim. Because issues of fact exist as to whether the defendant was acting within the scope of his employment or in the discharge of his duties, the Court finds this argument unavailing.
N.Y. Exec. Law § 259-q ("Section 259-q") provides in pertinent part as follows:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the division, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.