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HOFFMAN v. COUNTY OF DELAWARE

United States District Court, Northern District of New York


March 12, 1999

EDWARD F. HOFFMAN, JR., PLAINTIFF,
v.
COUNTY OF DELAWARE, MICHAEL TALARICO, MARK HAMILTON, WILLIAM R. MOON, AND CRAIG WHITTEN, DEFENDANTS.

The opinion of the court was delivered by: McAVOY, Chief Judge.

MEMORANDUM-DECISION & ORDER

The instant litigation arises out of Plaintiff Edward Hoffman's ("Hoffman") removal to and detention in a hospital pursuant to Article 9 of New York State Mental Hygiene Law. Hoffman asserts federal claims pursuant to 42 U.S.C. § 1983 and state law claims for false imprisonment, negligence, malpractice, and intentional infliction of emotional distress. Defendants County of Delaware (the "County"), Michael Talarico ("Talarico"), Mark Hamilton ("Hamilton"), William Moon ("Moon") and Craig Whitten ("Whitten") (collectively, the "defendants") now move for summary judgment pursuant to FED.R.CIV.P. 56 seeking dismissal of the Complaint in its entirety.*fn1

I. BACKGROUND

Because this is a motion for summary judgment by the defendants, the following facts are presented in the light most favorable to Hoffman. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).

Hoffman was a police officer for the Village of Sidney (the "Village") Police Department. On January 8, 1995, Hoffman responded to a call that a child had stopped breathing. In an effort to reach the scene, Hoffman activated his siren and light bar and pulled into the oncoming traffic lane to pass a slower moving vehicle. As he did so, another vehicle came over the crest of a hill and had to steer off of the road to avoid a head-on collision with Hoffman. Hoffman also lost control of his vehicle and crashed into a "no parking" sign. Although the collision shattered his windshield and limited his visibility, Hoffman proceeded to the scene of the emergency.

Disciplinary charges were filed against Hoffman as a result of this incident. After a hearing, the hearing officer found that Hoffman: (1) drove a police vehicle in an improper, unsafe, reckless, careless, or negligent manner; (2) endangered the safety and welfare of himself and others; (3) damaged a police vehicle; and (4) failed to follow proper police department rules or regulations. Although the hearing officer recommended that Hoffman be terminated the Village opted to suspend him for ninety days without pay.

Hoffman filed a petition pursuant to N.Y.C.P.L.R. Art. 78 challenging the determination of the hearing officer. Both that determination and his suspension were upheld by the Tompkins County Supreme Court and the Appellate Division, Third Department. See Hoffman v. Village of Sidney, 235 A.D.2d 698, 652 N.Y.S.2d 346 (3d Dep't 1997).

On September 9, 1995, Hoffman informed his superiors that he was experiencing pain in his left knee and hip areas. As a result, Hoffman was disabled from work and sought Workers' Compensation benefits and benefits under N.Y.GEN.MUN. LAW 207-c. After the Village denied and/or discontinued benefits to Hoffman, a series of disputes arose between Hoffman and the Village of Sidney regarding these benefits.

On June 28, 1996, Officer J.R. Blot ("Blot") entered the Sidetrack Lounge in Sidney, New York. Hoffman also was at the Sidetrack Lounge, and he and Blot engaged in conversation. Hoffman told Blot that he was experiencing continued problems at work and that he was still out on disability. Hoffman stated that certain persons in high positions had engaged in illegal drug activities in and around the Village of Sidney. Hoffman insisted that he was aware of these illegal activities and that the people involved were "out to get him" and had instituted a course of harassment against him. In fact, Hoffman attributed his difficulties in obtaining benefits to his knowledge of the alleged unlawful activities. Hoffman apparently told Blot that the former Commissioner of Police, Charles Bessett ("Bessett"), attempted to break into his apartment to steal and/or plant evidence. Hoffman indicated that if Bessett or anyone else ever attempted to enter his apartment, they would be greeted with a shotgun.

Hoffman asserted that Investigators Charles and Chandler, Assistant District Attorney Davis, and Bessett were involved in these unlawful drug activities. Hoffman believed that Whitten, although not directly involved in the drug activity, refused to take any action. Hoffman apparently stated that he would like to meet up with "these guys" in a men's room, that he would use physical force upon them, and that the coroner might need to be called. Hoffman insists, however, that he only stated that he would like to "punch them out." Hoffman believed these individuals had systematically destroyed his life over a fifteen year period.

Blot became concerned that Hoffman was overly consumed with this alleged conspiracy against him. He also noted that Hoffman had been drinking excessively and that he maintained numerous firearms in his apartment. Blot, therefore, contacted Whitten and the Delaware County Department of Social Services Crisis Intervention Officer/Part-Time Deputy Sheriff, Mark A. Hamilton. Hamilton discussed the matter with Defendants Commissioner of the Delaware County Department of Social Services William H. Moon and County Psychiatrist Dr. Michael Talarico.

Based on the discussion with Blot, Talarico and Moon advised that further investigation was warranted. Thus, Hamilton and Officer J.J. Bowie ("Bowie") were sent to assess Hoffman's mental health. Hamilton met with Hoffman at the Community Lounge, a bar located in the same building in which Hoffman resided. Hamilton told Hoffman about his conversation with Blot and that he was performing an assessment pursuant to N.Y. MENTAL HYG. LAW § 9.41.*fn2 He also offered Hoffman mental health and/or social services to assist him in resolving his anger, frustration, and hostility.

Hoffman denied having an alcohol problem, but did not deny making threats against or expressing hostility towards certain Village officials. Hoffman reiterated his belief that his troubles with the Village stemmed from an incident in 1987 involving Deputy Gritman, Investigator Charles, Assistant District Attorney Davis and former Police Commisioner Bessett. At one point in time during the conversation, Bowie reached into his shirt pocket to retrieve a cellular phone. In response, Hoffman got very excited, exhibited a certain degree of nervousness or paranoia, and questioned whether Hamilton and Blot were recording their Conversation. Hoffman was quieted after being reassured that the device was only a cellular telephone.

According to Hamilton:

  it became apparent that Mr. Hoffman believes that
  whatever occurred in 1987 has dramatically through a
  conspiracy of all the aforementioned persons, directly
  influenced the direction of his police career and
  created the conflict that he is now embroiled with . . .
  the Village. Mr. Hoffman indicated that he spends
  time in writing up notes and making voluminous records
  on his present and past conflicts associated with this
  conspiracy and his present job

  difficulty. Hoffman declined to accept any mental
  health or social services.

See Uniform Investigative Report annexed to the Dec. 1, 1998 aff. of Frank Miller as Ex. 23. Hamilton thereafter contacted all concerned parties and warned them of Hoffman's threats.

Based upon the information provided by Hamilton and Blot, on July 18, 1996 at approximately 10:00 a.m., Talarico issued a "pick-up order" pursuant to N.Y. MENTAL HYG.LAW § 94.5*fn3 Defendant William Masters, a Supervising Social Worker for Delaware County, and Talarico, also wrote a report supporting the issuance of the pickup order. The report indicated that Hoffman appears:

  obsessionally fixated and dwells upon his report of a
  conspiracy originating in 1987, . . . sees himself
  persecuted by the Village, . . . is thought to be a
  serious abuser of alcohol, if not alcohol dependent,
  . . . is known to have collected a substantial
  arsenal, . . . [has] seclud[ed] himself and
  retreat[ed] from normal interaction with other
  people, . . . does not allow anyone up the stairs to
  knock on his apartment door, . . . [and that] he has
  spoken to various individuals about obtaining sand
  bags in which to barricade his room.

The report concluded that "[because he is seriously angry within the framework of unrealistic delusions, because he feels threatened and may have barricaded his apartment, . . . and because he has a drinking problem, the increasing tension between he and his employer and the world in general are seen as meriting a serious evaluation for dangerousness." The pick-up order stated that it was based upon information provided by Hamilton, who was believed to be a police officer with the County Sheriffs Department. Moon also applied to have Hoffman involuntarily admitted to a hospital pursuant to N.Y.MENTAL HYG.LAW § 9.27*fn4, although Hoffman was ultimately admitted pursuant to N.Y.MENTAL HYG.LAW § 9.39*fn5 or arguably in the alternative, N.Y.MENTAL HYG. LAW § 9.37.*fn6

Later that day, Hoffman was stopped on Interstate 88 by the New York State Police. The State Police contacted the County Sheriff's Office. Hamilton and Blot arrived on the scene and took Hoffman into custody and transported him to the A.O. Fox Memorial Hospital Crisis Center for observation. At the time he was taken into custody, Hoffman had two loaded pistols in the front seat of his car, two long arms in the trunk, and a knife. Thereafter, and as a result of the issuance of the pick-up order, Delaware County Court Judge Robert L. Estes issued an order suspending Hoffman's license to possess or carry pistols or revolvers and requiring him to deliver all his pistols and revolvers to the Delaware County Sheriff. The order was served on Hoffman at A.O. Fox. Memorial Hospital.

Hoffman consented to have Officer Kent Lewis retrieve the pistols from his apartment. Hoffman claims that he only gave permission for Officer Lewis to enter his apartment. Nonetheless, Hamilton, Blot, Lewis and Sergeant Tiska secured Hoffman's handguns from his apartment and retrieved an additional four handguns from his sister's home.

In conformance with the requirements of N.Y. MENTAL HYG.LAW § 9.39, the need for Hoffman's immediate hospitalization was confirmed by staff physician Shivaji Bhonslay prior to admission. Dr. Bhonslay certified that he personally examined Hoffman and opined that he had a mental illness for which immediate inpatient care and treatment in a hospital is appropriate. Bhonslay further opined that Hoffman posed a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others were placed in reasonable fear of serious physical harm. See Ex. "A" annexed to the Nov. 25, 1998 Aff. of Senta B. Siuda. At approximately 6:00 p.m. on July 18, 1996, Hoffman was examined by Dr. Lavin, who confirmed Hoffman's need for immediate hospitalization. See id.

In further compliance with Article 9 of the N.Y. Mental Hyg.Law, Dr. Arnold Bulove, a member of the hospital's psychiatric staff, certified that Hoffman was in need of inpatient, involuntary care on July 19, 1996. See id. Dr. Bulove found that Hoffman may be delusional. Hoffman was ultimately diagnosed with adjustment reaction/transient situational disorder. Hoffman was released on July 23, 1996 after Dr. Lava determined that he no longer posed a threat to either himself or others.

On August 20, 1996, the Village filed charges against Hoffman pursuant to N.Y.CIVIL SERV.LAW § 75 alleging that Hoffman: (1) threatened one or more persons; (2) failed to follow the directives of the commissioner of police; (3) was unfit for duty as a police officer; (4) violated the police department rules and regulations; and (5) violated the police department manual. A hearing was held at which Hoffman denied making any threats of serious physical harm or death. Hoffman contended that he did not threaten anybody, but that "the Worse thing I ever say about [them] is I would like to punch [them] out, but I never do."

The hearing officer concluded that "[t]he credible evidence is clear and convincing beyond doubt that Officer Hoffman made certain statements to J.R. Blot at the Sidetrack Lounge on June. 28, 1996 which threatened the lives of certain present or former public officials." The hearing officer sustained charges 1, 2, and 4 and dismissed charge 5. The Village withdrew charge 3. The Village Board adopted the hearing officer's recommendation that Hoffman be terminated effective January 27, 1997.

Hoffman then commenced an Article 78 petition in Supreme Court, Delaware County, challenging his termination from the Village police department. The court found that:

  [a]fter a careful review of the hearing transcript and
  exhibits, it is abundantly clear that substantial
  evidence supports the determination of the Hearing
  Officer. . . . Finally, given the nature of the
  conduct and the position of public trust formerly held
  by petitioner, the penalty imposed by the Hearing
  Officer is not excessive.

See Hoffman v. Village of Sidney,  No. 97-170 (Sup.Ct.Delaware County
June 18, 1997). Hoffman appealed this decision to the Appellate
Division, Third Department, which affirmed. See Hoffman v. Village of
Sidney,  675 N.Y.S.2d 448 (3d Dep't 1998) The Appellate Division noted
that "[Hoffman] engaged in a conversation with a

Special Deputy of the Delaware County Sheriff's Department wherein he made
threatening and disparaging statements directed toward, among others, the
Village Police Commissioner." Id. at 449. The court further stated that
"[the Special Deputy to whom petitioner made the threatening and
disparaging remarks testified at the hearing and, further, other persons
testified to the very damaging statements made by the Special Deputy
concerning petitioner's threatening statements. . . . [W]hile petitioner
denied making the threats in question, this simply presented a
credibility issue to be determined by the Hearing Officer." Id. at 449.

On July 24, 1997, Hoffman commenced the instant action against the Village, the County of Delaware, Masters, Talarico, Hamilton, Moon, and Whitten asserting causes of action pursuant to 42 U.S.C. § 1983 and various state law causes of action. The defendants now move for summary judgment pursuant to FED. R.Civ.P. 56 seeking dismissal of the Complaint in its entirety.

II. DISCUSSION

A. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, judgment
may be entered in favor of the moving party if "there is no genuine issue
as to any material fact and 11 the moving party is entitled to judgment
as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) On a motion for summary
judgment, all facts must be construed in favor of the nonmoving party.
Id.; Buttry v. General Signal Corp.,  68 F.3d 1488, 1492 (2d Cir. 1995).
Where the moving party has supported the motion by affidavits and/or
documentary evidence, the non-movant "may not rest upon mere allegations
or denials of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in [] rule [56], must
set forth specific facts showing that there is a genuine issue [of
material fact] for trial. If the adverse party does not so respond,
summary Judgement, if appropriate, shall be entered against the adverse
party." Fed.R.Civ.P.56(e); see BellSouth Telecommunications, Inc. v. W.R.
Grace & Co.,  77 F.3d 603, 615 (2d Cir.1996) With this standard in mind,
the Court will now address defendants motion for summary judgment.

B. Constitutional Deprivation

The first step in addressing defendants' motions for summary judgement is to ascertain whether Hoffman suffered a constitutional deprivation. See Stuto v. Fleishman 164 F.3d 820, 825 (2d Cir. 1999). Hoffman asserts three Constitutional violations: (1) retaliation for the exercise of his First Amendment right of free speech, (2) involuntarily confinement in a mental hospital in violation of his Fourth Amendment and due process rights guaranteed by the Fourteenth Amendment to the United States Constitution, and (3) an illegal search and seizure in violation of the Fourth Amendment. The Court will address each alleged constitutional deprivation seriatim.

C. First Amendment Claim

According to the Complaint, Hoffman has spoken out on matters involving the Village of Sidney and the Village of Sidney Police Department. Specifically, Hoffman accused Whitten and others of "knowledge of a continuing cover up of illegal drug activity in and around the Village of Sidney." Hoffman claims that Defendants Hamilton, Whitten and the County of Delaware has Hoffman confined pursuant to Article 9 of New York's Mental Hygiene Law in retaliation for his exercise of his First Amendment rights.

A plaintiff asserting government conduct in retaliation for the Exercise of free speech must demonstrate that "(i) he has an interest protected by the First Amendment; (ii) the defendants actions were motivated by or substantially caused by the plaintiff's exercise of that right; and (iii) the defendant's action effectively chilled the exercise of the plaintiff's First Amendment rights." Connell v. Signoracci 153 F.3d 74, 79 (2d Cir. 1998). "If the employee meets that burden, the employer is given an opportunity to establish by a preponderance of the evidence that it would have taken the same action even in the absence of the protected speech." Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).

Speech concerning allegations of illegal drug activity by police
officers, district attorneys and other public officials concerns public
wrongdoing and, thus, constitutes constitutionally protected speech. See
Pickering v. Bd. of Educ.,  391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811
(1968); Lewis, 165 F.3d at 163-64. Thus, the first prong is satisfied.

With respect to the second prong, the defendants have submitted substantial evidence demonstrating that Hoffman was arrested and brought to the hospital because of their reasonable beliefs that he posed a substantial likelihood of injury to others. In support of this contention, the defendants submitted documentary evidence and affidavits demonstrating that: (1) Hoffman possessed numerous firearms and other weapons in his apartment; (2) he claimed to have sandbagged his apartment to protect him from an attack; (3) he was believed to be an abuser of alcohol; (4) he dwelled on or was obsessed with an alleged conspiracy against him by certain Village officials; (5) he had a history of conflicts with the Village; and (6) he made threatening, homicidal remarks towards certain Village officials.

Hoffman has failed to introduce any evidence countering that of the defendants or otherwise tending to demonstrate that the defendants acted because of Hoffman's protected speech. Hoffman's opposition arguments consist of claims that: (1) Hamilton and Blot never made the statements to Talarico in support of the pick-up order; (2) Hamilton and Moon gave false and/or misleading information to Talarico in support of the pick-up order; and (3) he never threatened anybody, but, at most, stated that he would like to "punch them out." Thus, according to Hoffman, he has demonstrated that the purported threats of physical violence were a pretext for retaliating against him for the exercise of his First Amendment rights.

The defendants respond that the undisputed evidence demonstrates that Hoffman and Blot reported threats of physical violence to Talarico, Hoffman and Moon did not give false or misleading information to Talarico, and Hoffman is collaterally estopped from arguing that he did not "threaten anybody because that issue was fully litigated and decided against him at the Civil Service Law § 75 hearing and subsequent state court litigation.

Hoffman's assertion that neither Blot nor Hamilton made the statements upon which Talarico relied is contrary to the undisputed evidence before the Court. Blot had a conversation with Hoffman at the Sidetrack Lounge wherein Hoffman made threats towards certain Village officials. At Hamilton's request, Blot memorialized his conversation with Hoffman. Blot's notes state that:

  [Hoffman] spoke of his continued problems he was
  having with the Village of Sidney, . . . [O]ver the
  last few months I had heard these problems and stories
  before wherein many people in high positions today had
  done some illegal things in the past that [Hoffman]
  knew about; and, they were causing most of the
  problems he was currently having with the Village of
  Sidney. . . . He believes that past Commission of
  Police Chuck Bessett has attempted to break into his
  apartment to steal certain evidence or plant evidence
  there. . . . He went on to say that if anyone ever
  tried that again they would be greeted with a
  shotgun. . . . [Hoffman] stated that he would look
  forward to the opportunity of meeting "these guys" in
  a men's room . . .

  [and that] it was my understanding that physical
  force would be used.

Because of the seriousness of the threats made by Hoffman, Hamilton and Bowie conducted a further investigation, which included talking with Hoffman. During that conversation, Hoffman did not deny his open hostility towards those Village officials. Hoffman's investigative report, Bowie's notes, and the affidavits of Talarico and Whitten corroborate Blot's notes and tend to confirm that Blot reported that Hoffman threatened certain public officials and appeared obsessed with an alleged conspiracy.

For similar reasons, Hoffman's assertion that Hamilton and Moon made false or misleading material representations to Talarico in an effort to procure a pick-up order is similarly unsupported by the evidence. Hoffman contends that there are questions of fact whether "the reports given by [] Hamilton and/or [] Moon . . . were materially misleading, in that they contained information that was not factual and had no basis, or was grossly exaggerated, solely for the purpose of having a `pickup order' issued." However, the undisputed evidence previously discussed demonstrates that Hamilton and Moon acted in good faith and upon information which they reasonably believed to be true. Based upon all the information available to him, Hamilton concluded that Hoffman was seriously disturbed and posed a significant threat to himself or others and, thus, sought a pick-up order. Hamilton relayed this information to Moon.

Hoffman has failed to set forth any evidence that Hoffman or Moon intentionally misled or misrepresented the facts presented to Talarico in support of the § 9.45 pick-up order. In fact, Hoffman challenged the veracity of this information at his administrative hearing pursuant to Civil Service Law § 75 and the subsequent litigation in state court. The hearing officer found Hamilton's information to credible and the courts sustained this finding as supported by substantial evidence. Thus, there is no reason to believe that Hamilton or Moon falsified any information provided to Talarico.

Finally, the Courts agrees that Hoffman is collaterally estopped from denying that he made threats against various Village officials. "Collateral estoppel bars a party from raising a specific factual or legal issue in a second action when the party had a full and fair opportunity to litigate the issue on a prior proceeding." Transaero Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 731 (2d Cir. 1998). "More specifically, collaterial estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was usually litigated and actually decided, (3) There was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits." Id.

A federal court must give a state court judgment "the sate preclusive
effect as would be given that judgment under the law of the State in
which the judgment was rendered." Migra, v. Warren City Sch. Dist. Bd. of
Educ.,  465 U.S.75, 104 S.Ct. 892, 896, 79 L.Ed, 2d 56 (1984). Under New
York law, "[t]he doctrine of collateral estoppel . . . precludes a party
from relitigating in a subsequent action or proceeding an issue clearly
raised in a prior action or proceeding and decided against that party . . .
whether or; not the tribunals or causes of action are the same." Ryan
v. New York Tel. Co.,  62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487
(1984). "In the application of collateral estoppel with respect to
administrative determinations, the burden rests upon the proponent of
collateral estoppel to demonstrate the identicality and decisiveness of
the issue, while the burden rest upon the opponent to establish the
absence o f a full and fair opportunity to litigate the issue in prior
action or proceeding." Id. at 827.

Applying these principles, the Court finds that collateral estoppel bars Hoffman from denying that he made threats of physical harm. Charge "A" in Hoffman's disciplinary hearing pursuant to Civil Service Law § 75 was that he had threatened one or more persons. At the hearing, Hoffman denied having made threatening remarks towards any Village officials. Hoffman had the opportunity to call witnesses, cross-examine adversarial witnesses and offer evidence. After reviewing all the evidence and making determinations of credibility, the hearing officer found that "[t]he credible evidence is clear and convincing beyond any doubt that Officer Hoffman made certain statements to J.R. Blot at the Sidetrack Lounge on June 28, 1996 which threatened the lives of certain present or former public officials. . . . The record is replete with references to the statements made by Officer Hoffman to the effect that: `If I ever get them alone in a men's room they will come out in body bags and I will go to jail for murder.'"

Hoffman challenged this finding in Supreme Court, Delaware County, which held that "[a]fter a careful review of the hearing transcript and exhibits, it is abundantly clear that substantial evidence supports the determination of the Hearing Officer." Hoffman appealed this decision to the Appellate Division, Third Department, again arguing that he did not make any threats. The Appellate Division stated that "contrary to [Hoffman's] contention, there is substantial evidence to support [the] determination. The Special Deputy to whom [Hoffman] made the threatening and disparaging remarks testified at the hearing and, further, other persons testified to the very damaging statements made by the Special Deputy concerning [Hoffman's] threatening statements. . . . And while [Hoffman] denied making the threats in question, this simply presented a credibility issue to be determined by the Hearing Officer."

Whether Hoffman made threats was pivotal to the administrative hearing
and subsequent review by the New York state courts and was specifically
litigated in those prior proceedings. A determination against Hoffman was
made by the hearing officer and upheld by the courts. Accordingly, that
finding is conclusive as among the parties here and may not be
relitigated. Transaero, Inc.,  162 F.3d at 730-31.

Thus, Hoffman has failed to proffer any evidence demonstrating that the defendants' actions were motivated or substantially caused by Hoffman's protected speech. Even if Hoffman could demonstrate such a connection, based upon the evidence demonstrating that Hoffman actually threatened certain officials and harbored hostility towards the Village, the defendants have adequately established that they would have taken the same actions notwithstanding Hoffman's speech. Heil v. Santoro,
147 F.3d 103, 109 (2d Cir. 1998).

D. Due Process Claims/Fourth Amendment Seizure

Hoffman also claims that defendants violated his Fourth and Fourteenth Amendment rights because he was confined without due process of law. Specifically, Hoffman argues that the defendants: (1) failed to follow the statutory procedure contained in Article 9 of the Mental Hygiene Law; (2) obtained a pick-up order based upon false or misleading information; and (3) failed to interview or conduct a physical examination prior to seeking the pick-up order.

The defendants move for summary judgment claiming that they fully complied with the mandates of Article 9 of the Mental Hygiene Law, that they acted in good faith upon information they reasonably believed to be true, and that a pick-up order was issued upon probable cause to believe that Hoffman presented a danger to himself or others. The defendants further argue that they were not involved in the subsequent decisions to admit or retain Hoffman in the hospital once the pick-up order was issued.

Fundamental constitutional liberties clearly are implicated here. "[A]
State cannot constitutionally confine . . . a nondangerous individual who
is capable of surviving in freedom by [herself] or with the help of
willing and responsible family members." O'Connor v. Donaldson,
422 U.S. 563, 95 S.Ct. 2486, 2494, 45 L.Ed.2d 396 (1975); see also
Rodriguez v. City of New York,  72 F.3d 1051, 1061-62 (2d Cir. 1995). "An
involuntary civil commitment is a "massive curtailment of liberty' and it
therefore cannot permissibly be accomplished without due process of law."
Rodriguez v. City of New York,  72 F.3d 1051, 1061 (2d Cir. 1995)
(quoting Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 1263, 63 L.Ed.2d
552 (1980)). Whether Hoffman's constitutional rights may have been
violated will now be discussed with respect to each defendant.

1. Talarico

Dr. Talarico was a New York State employee of the Binghamton Psychiatric Center who was on loan to the Delaware County Mental Health Clinic. Talarico signed the "pick-up order" pursuant to N.Y. MENTAL HYG.LAW § 9.45 that led to Hoffman's arrest and subsequent admission to the hospital. Hoffman claims that Talarico should have examined him prior to issuing the pick-up order and that Talarico relied upon a report from Hamilton who is not a police officer.

Talarico acted pursuant to N.Y. MENTAL HYG.LAW § 9.45 which authorizes "[t]he director of community services or the director's designee . . . to direct the removal of any person . . . to a hospital . . . if [a] peace officer or police officer reports to him that such person has a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others." The "phrase "likely to result in serious harm is statutorily defined to mean: "(a substantial risk of physical harm to the person manifested by threats of or attempts of suicide or serious bodily harm or other Conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm." N.Y. MENTAL HyG.LAW § 9.01;. See also N.Y.MENTAL HYG.LAW § 9.39(a)

Contrary to Hoffman's assertion, § 9.45 does not require a physical or mental examination before, issueing a pick-up order.*fn7 of courses the director of community services or the director's designee may not haphazardly issue pick-up orders. Akin to the issuance of an arrest warrant, "[the Fourth Amendment requires an official seizing and retaining a person for a psychiatric evaluation to have probable cause to believe that the person is dangerous to himself or others. Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997); see Glass v. Mayas 984 F.2d 55, 58 (2d Cir. 1993). "[A] showing of probable cause in the mental health seizure context requires only a "probability or substantial chance' of dangerous behavior, not an actual showing of such behavior." Monday, 118 F.3d at 1102 See Project Release, 722 F.2d at 972-75.

Here, the facts as known by Talarico demonstrate that he had probable
cause to issue a pick-up order. See e.g. Richardson v. Nassau County
Medical Center,  840 F. Supp. 219,220-21 (E.D.N.Y. 1994); Thornton v.
City of Albany, 831 F. Supp. 970, 985(N.D.N.Y. 1993). Talarico

spoke to both Hamilton and Blot who stated that Hoffman was known to
harbor ill feelings towards several former and current Village
officials; he blamed many of his problems on an alleged conspiracy by
these individuals to cover up illegal drug activity in the Village; he
believed the former police commissioner attempted to break into his
apartment to steal and/or plant evidence; he appeared to be paranoid; he
threatened violence towards certain city officials; he did not deny
making the threatening comments upon subsequent investigation; he was
known to have a large collection of firearms and other weapons; he was
thought to abuse alcohol; and he was believed to have sandbagged his
apartment as protection from an attack. Based upon all this information,
Talarico concluded that Hoffman exhibited unreasonable delusions of
persecution, that he was "seriously angry," and has "increasing tension
[with] his employer." Accordingly, Talarico concluded that Hoffman needed
"a serious evaluation for dangerousness" and signed a 9.45 pick-up
order. This information, as known to Talarico at the time, was
objectively sufficient to establish a substantial likelihood of dangerous
behavior that was likely to result in harm to others. See Glass,  984
F.2d at 57; Richardson,  840 F. Supp. at 221-22 (psychiatrist entitled to
qualified immunity for authorizing involuntary commitment where plaintiff
carried knives for "for his own protection" and was found to be
paranoid, delusional and dangerous); Higgins v. City of Oneonta
208 A.D.2d 1067, 617 N.Y.S.2d 566, 568-69 (3d Dep't 1994) (finding that
it was objectively reasonable to admit a former police officer who made
phone calls to the police department stating that he wanted to send
"retirement presents" to the mayor and city attorney, that "they're gonna
remember for a long time, that "[i]f I told you what I had in mind . . .
in twenty minutes a police car would be down here," and that "what I have
in mind for ya [is] not very pleasant."); see also Ricciuti v. New York
City Transit Auth.,  124 F.3d 123, 128 (2d Cir. 1997). Because Talarico
acted in accordance with § 9.45 and upon a finding of probable cause
to issue the pick-up order, Hoffman was afforded all process that was due
and, accordingly, has suffered no Fourth or Fourteenth Amendment
violation.

Hoffman next argues that Talarico did not follow the statutory procedures contained in § 9.45 because he relied upon the report of Hamilton who is not a police or peace officer within the meaning of N YCRIM.PRO. § 1.20 (34)(b)*fn8 or §§ 1.20 (33) and 2.10.*fn9

Pursuant to § 9.45, a pick-up order may be issued upon a report from, among others, a police officer. A "police officer" is defined to include "Sheriffs, under-sheriffs and deputy sheriffs of counties outside of New York City." N.Y.CRIM.PRO. 1.20 (34)(b). According to former Sheriff Paul Peterson, Hamilton holds a competitive, permanent position and is authorized to act as a police officer. Hamilton also asserts that he is authorized to act as a deputy sheriff and, thus, is a police officer within the meaning of N.Y.CRIM.PRO. 1.20 (34)(b).

The evidence demonstrates that Hamilton was a part-time or special Deputy Sheriff appointed by the Delaware County Sheriff's Department. Special or part-time deputy sheriffs are empowered to perform "only those duties and powers authorized by such sheriff." N.Y. COUNTY LAW §§ 653; see also N.Y. COUNTY LAW §§ 652(2), 655; People v. Terwilliger, 172 Misc. 70, 14 N.Y.S.2d 267 (City Court 1939); People v. Smith, 105 Misc.2d 586, 587, 432 N.Y.S.2d 612 (Sup Ct. 1980). The defendants have not provided adequate evidence establishing the extent of Hamilton's authority as a special deputy sheriff. Thus, there is insufficient evidence before the Court to determine whether, at the times in question, he was acting within the scope of any such authority.

Assuming, without deciding, that Hamilton was not a police or peace
officer as defined by N.Y.CRIM.PRo. 1.20 (34), it was objectively
reasonable for Talarico to believe that Hamilton was a police officer
and, thus, that he was not violating Hoffman's constitutional rights. See
Connell v. Signoracci,  153 F.3d 74, 80 (2d Cir. 1998). Hamilton advised
Hoffman that he was acting pursuant to N.Y. MENTAL HYG.LAW § 9.41,
which applies only to police and peace officers. The pick-up order and
Talarico's deposition testimony demonstrate that he believed that
Hamilton was a police officer with the County Sheriff's Department. Based
upon the evidence then available, reasonable persons could disagree
whether Hamilton was a police officer authorized to make a report
pursuant to N.Y. MENTAL HYGLAW § 9.45. Accordingly, Talarico is
entitled to qualified immunity.

As previously noted, Hoffman's claims that Hamilton or Blot never provided Talarico with the information supporting the pick-up order is without merit. Defendants have submitted substantial evidence demonstrating that Blot and Hamilton relayed their concerns regarding Hoffman to Talarico. Thus, Talarico is entitled to qualified immunity on both the Fourth and Fourteenth Amendment claims.

2. Whitten

Hoffman claims that Whitten provided false or misleading information to Talarico and that Talarico utilized this false or misleading information in issuing the pick-up order. Whitten responds that he merely provided truthful answers in response to inquiries by Hamilton and Masters and that he took no part in obtaining the pick-up order: Assuming Hoffman suffered a constitutional injury, Whitten may not be held liable therefor.

Although Whitten is the commissioner of police and provided information
to various individuals, there is no evidence that Whitten confined or
intended to confine plains tiff, or affirmatively proceed or instigated
Hoffman's arrest. See King v. Crossland Savings Bank,  111 F.3d 251, 256
(2d Cir. 1997). Further, Whitten took no part in the decision to seek or
issue the pick-up order or to admit Hoffman to the hospital. Rather,
Whitten merely responded to inquiries by Hamilton and Masters. Thus, it
cannot be said that Whitten sufficiently contributed to any alleged
Constitutional injury sufficient to support claim pursuant to
42 U.S.C. § 1983. See Taylor v. Brentwood Union Free Sch. Dist.,
143 F.3d 679, 685 (2d Cir. 1998) (stating that a § 1983 plaintiff
must prove, inter alia, that the defendant caused the deprivation of his
or her rights) (citing Monell v. Department of Social Servs., 436 U.S. 658,
98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978)), cert. denied, ___ U.S. ___,
119 S.Ct. 1027, 143 L.Ed.2d 37 (1999).

Whitten also is entitled to the defense of qualified immunity. The evidence demonstrates that Whitten acted in good faith and that the information provided by Whitten is consistent with that obtained from Blot, Hamilton and Bowie. Hoffman has presented no evidence tending to support his allegation that Whitten provided false or misleading information to Hamilton or Masters.

3. Moon

Moon also is entitled to summary judgment because there is no evidence demonstrating that Moon in any way caused or contributed to a deprivation of Hoffman's Constitutional Rights. See Taylor, 143 F.3d at 685. Even assuming a constitutional violation used by Moon, his actions are protected by qualified immunity.

Moon's involvement was limited. Moon conferred with Hamilton and advised that further investigation into Hoffman's mental heath was advisable. At the conclusion of Hamilton's investigation, Moon determined that Hoffman posed a substantial risk of harm to others for which hospitalization was necessary. Accordingly, Moon applied for an involuntary admission pursuant to N.Y. MENTAL HYGLAW § 9.27.*fn10 As required by § 9.27, the application contained a statement of the facts upon which the allegation of mental illness and need for care and treatment was based. The application stated that:

  Hoffman has refused to seek therapy or voluntary
  psychiatric consult and he has become consumed by his
  anger and paranoia directed at the Village of Sidney
  it's present and past police commissioners. . . . It
  is our information that Mr. Hoffman has amassed a
  large quantity of firearms in his small apartment and
  he has told other officers that he sandbags in the
  floor and walls of this apartment to prevent any
  assault on the apartment. Mr. Hoffman would not permit
  Deputy Mark Hamilton and Deputy Jeff Bowie to
  interview him in his apartment. . . . Mr. Hoffman
  believes that people are trying or may try to break
  into his apartment. Mr. Hoffman believes that the
  former Police Commissioner, Charles Bessett who lives
  in South Carolina wants to break into his apartment.
  Mr. Hoffman believes that a conspiracy that started in
  1987 is the root of all his problems with his present
  employer and that he seems to be consumed by anger and
  paranoia directed at Craig Whitten, Robert Davis and
  Rick Charles.

Moon, the County Commissioner of Social Services, was authorized to make
an application pursuant to § 9.27, see N.Y. MENTAL HYG.LAW § 9.27
(b)(5) (social services official may apply for involuntary admission);
N. Y.Soc.SERV.LAW § 2 (14) (commissioner of social services is a
"social services official"), and his conduct otherwise fully comported
with § 9.27. See e.g. Matter of Stefano, 140 Misc.2d 801, 803,
531 N.Y.S.2d 212 (Sup.Ct. 1988).  Of course, Hoffman was not admitted
pursuant to Moon's § 9.27 application*fn11 but pursuant to §
9:39 after a § 9.45 pick-up order had been issued by Talarico. Thus,
Moon's actions did not sufficiently contribute to Hoffman's involuntary
confinement sufficient to support a § 1983 claim.

Assuming a Constitutional harm and sufficient causal connection, Moon
reasonably concluded based upon the evidence then available that Hoffman
was dangerous and, thus, applied for an involuntary admission. A
reasonable belief that Hoffman was dangerous was a sufficient basis upon
which to seek such an application. See Prevost,  722 F.2d at 973;
discussion supra at II(D)(1). The information known to Moon at the time
objectively demonstrates a sufficient basis upon which to obtain a
pick-up order and/or seek admission to a hospital pursuant to N.Y. MENTAL
HYG.LAW § 9.27 and, accordingly, Moon's actions are protected by
qualified immunity. Hoffman has presented no evidence that Moon acted in
bad faith or provided false or misleading information in support of the
§ 9.27 application or the pick-up order.

4. Hamilton

Hamilton moves for summary judgment claiming that his actions were objectively reasonable and, thus, he is entitied to qualified immunity. Hoffman responds that Hamilton violated a clearly established Constitutional right because Hamilton did not have probable cause to seek a pick-up order and Hamilton provided false and misleading information in support of the pick-up order. Hoffman further argues that Hamilton is not a police or peace officer and, therefore, improperly sought a pick-up order pursuant to § 9.45.

Hamilton had probable cause to believe that Hoffman posed a substantial risk of harm to others sufficient to seek a pickup order. Upon a report from Blot regarding Hoffman's threats to various individuals, Hamilton consulted with his superior, Moon, and County Psychiatrist Talarico. Upon the advice of Moon and Talarico, Hamilton interviewed Hoffman to evaluate his mental condition. During the interview, Hamilton allegedly advised Hoffman that he was acting in his capacity as the Director of the Special Investigations Unit of the Department of Social Services to make an assessment under N.Y.Soc.Serv. Law § 473 (Adult Protective Services) and N.Y.Mental Hyg.Law § 9.41 (Emergency admissions for immediate observation, care, and treatment; powers of certain peace officers and police officers).*fn12 Hamilton became genuinely concerned that Hoffman posed a substantial threat of danger to various current and former Village officials. Thus, Hamilton relayed his concerns to Talarico, who issued the pick-up order. Reasonable officers could disagree whether Hoffman was sufficiently "dangerous" to warrant an application for a pickup order. Further, there is no evidence that Hamilton supplied materially false or misleading information in support of the pick-up order. Thus, Hamilton had a proper basis upon which to seek a pick-up order.

Hoffman's remaining contention, that Hamilton was not a police officer authorized to seek a pick-up order or to take Hoffman into custody in response to the pick-up order, is more troubling. As previously discussed, there is Insufficient evidence before the Court to determine whether Hoffman was a police officer and whether, at the times in Question, he was acting in such a capacity.

On the one hand there is no indication in the record that Hamiliton
intentionally misrepresented to Talarico his authority to seek the
pick-up order and take Hoffman into custody. See e.g. Velardi v. Walsh,
40 F.3d 569, 573 (2n Cir. 1994) ("Where an officer knows, or his reason
to know, that he has materially misled a magistrate on the basis for a
finding of probable cause, . . . the shield of qualified immunity is
lost.") (quoting Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.
1991), cert. denied,  505 U.S. 1221, 112 .Ct. 3032, 120 L.Ed.2d 902
(1992)). On the other hand, Hamilton is, or should be, particularly aware
of his authority as a special or part-time deputy sheriff. If Hamilton
knew, or reasonably should have known, that he did not have the authority
to seek a pick-up order then he may be held liable for violating
Hoffman's constitutional rights. See id. Similarly, Hamilton's authority
as a special or part-time deputy sheriff is crucial to a determination of
whether he was authorized to take Hoffman into custody pursuant to the
pick-up order and transport him to the hospital, see N.Y. MENTAL HYG.LAW
§ 9.45, thereby implicating Fourth Amendment rights Thus, Hamilton's
status and authority as a special or part-time deputy sheriff is an
outstanding factual issue that precludes the entry of summary judgment in
his favor. If it is determined at trial that Hamilton was authorized to
act as a police officer, to seek a pick-up order, and to take Hoffman
into custody and transport to the hospital pursuant to the pick-up
order, then Hamilton's actions were reasonable under the circumstances
and he would be entitled to qualified immunity.

Finally, none of the defendants herein took part. in the decision to admit and/or retain Hoffman at the hospital and, thus, they cannot be held accountable therefor. Rather, Hoffman was afforded all the procedural protections set forth in Article 9 of Mental Hygiene Law.

E. Fourth Amendment Claim

Hoffman also asserts a violation of the Fourth Amendment claiming that Hamilton entered his apartment and seized his handguns without a search warrant or consent. Hamilton moves to dismiss claiming that Hoffman gave consent to Officer Lewis and that this consent was sufficient to permit Hamilton to also enter the apartment.

Consent is a well-established exception to the probable cause and
warrant requirements of the Fourth Amendment. Schneckloth v. Bustamonte,
412 U.S. 218, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973); United States
v. Peterson,  100 F.3d 7, 11 (1996). "The Fourth Amendment is satisfied
when, under the circumstances, it is objectively reasonable for the
officer to believe that the scope of the suspect's consent permitted him
to [conduct the search that was undertaken]." Florida v. Jimeno,
500 U.S. 248, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991).

Here, Hoffman admits that he consented to have his friend, Officer Lewis, enter his apartment, obtain his firearms, and turn them over to the County Sheriff. Hoffman also admits that he never told Lewis that other officers, including Hamilton, were not to enter his apartment. However, Hoffman claims that he expressly told Hamilton that he was not authorized to enter the apartment without a warrant. The evidence demonstrates that Lewis was present during the search of Hoffman's apartment. In fact, Lewis, Tiska, Blot, and Hamilton all entered Hoffman's apartment. The handguns were retrieved and inventoried by Officer Lewis.

While Hoffman was permitted to "delimit as he chooses the scope of the
search to which be consent[ed]", Jimeno,  111 S.Ct. at 1804, a consent
may not be qualified by the number of officers allowed to search. See
United States v. Rubio,  727 F.2d 786, 797-97 (9th Cir. 1983); United
States v. Betts,  16 F.3d 748, 755 (7th Cir. 1994); State v. Benallie,
570 N.W.2d 236 (S.D. 1997); see also Wildauer v. Frederick County,
993 F.2d 369, 372 (4th Cir. 1993). As the Ninth Circuit stated in Rubio:

  We are unpersuaded that a consent search may be
  validly qualified by the number of officers allowed to
  search, and we so hold. Once consent has been obtained
  from one with authority to give it, any expectation of
  privacy has been lost. We seriously doubt that the
  entry of additional officers would further diminish
  the consenter's expectation of privacy.

Rubio,  727 F.2d at 797.

Thus, having given consent to Lewis, Hoffman no longer had any expectation of privacy and, accordingly, suffered no violation of his Fourth Amendment rights. See id.

The fact that Hamilton was a member of a different police department than Lewis or was acting in his position as Special Investigator for the County Department of Social Services Lewis does not require a different result. For example, Rubio involved "a group of local, state and federal officers." Id. at 796. The Ninth Circuit did not find the involvement of federal, state, and local police agencies to be determinative of the defendant's expectation of privacy. Similarly, in Wildauer, the plaintiff consented only to the entry of an employee of the department of social services into her home. Nevertheless, members of the sheriff's department, who had accompanied the social worker to the plaintiff's home, also entered. The Fourth Circuit, in agreeing with the Ninth Circuit, stated that "once a person consents to the search . . . he may not qualify the number of officials allowed to search. Having consented to [the social worker's] entry, [plaintiff] could not deny access to other members of the party." Wildauer, 993 F.2d at 372. Here, Hoffman knew that Hamilton, the Department of Social Services, and the County Sheriff were involved in his case. Thus, having given consent to Officer Lewis to enter his residence, he no longer had any expectation of privacy and could not limit that consent to exclude Hamilton.

Similarly, whether Hoffman specifically told Hamilton not to enter the apartment without a warrant does not alter the Court's conclusion. The only case to arguably support Hoffman's position is Mickelson v. State, 906 P.2d 1020 (Wyo. 1995). In Mickelson, the police obtained consent upon their promise that only one officer would enter the premises. Mickelson gave his consent upon the express condition that only that one officer enter the premises. Notwithstanding this promise, another officer entered the premises. The Mickelson court disagreed with the above-cited federal cases and held that an individual could limit consent to a certain number of officers. Mickelson, 906 P.2d at 1022-23.

Michelson is distinguishable from the instant case because, here,
Hoffman's consent was not induced upon a promise that only one officer
would enter the apartment. Rather, Hoffman consented to have Lewis enter
his apartment and retrieve the handguns. Lewis did enter the apartment,
although other individuals, including Hamilton, accompanied him. Again,
Hamilton gave his consent with full knowledge that the Sheriff's
Department "and the Department of Social Services were involved in his
case and, therefore, he could not reasonably have expected that they
would not be present when his handguns were retrieved from his
apartment. This is supported by the fact that the order suspending
Hoffman's license to carry and possess and handgun require him to turn
his guns over to the County Sheriff. See Rubio, 727 F.2d at 797; Betts,
16 F.3d at 755; Wildauer  993 F.2d at 372; see also United States v.
White,  617 F.2d 1131, 1134 (5th Cir. 1980) (defendant suffered no harm
as a result of search by officers other than those listed on the consent
form). To the extent that Mickelson stands for a broader proposition, its
holding is not binding and the Court declines to follow it.*fn13

F. Municipal Liability

A municipality may not be held liable under § 1983 on a theory of
respondeat superior. Thomas v. Roach,  165 F.3d 137, 145 (2d Cir. 1999).
Thus, to the extent that Hoffman seeks to hold the Village liable under
such a theory, those claims must be dismissed.

On the other hand, "municipal liabiity under § 1983 may be premised
upon an officially promulgated policy; a custom or persistent practice;
deliberately indifferent training that is the proximate cause of the
violation of plaintiffs federally protected rights; or a single decision
by an official with final decision-making authority." SECTION 1983
LITIGATION, CLAIMS AND DEFENSES, 3D ED, Martin A. Schwartz and John E.
Kirklin, Vol. 1, § 7.6, p. 21 (citations omitted); see Roach, 165
F.3d at 145; DeCarlo v. Fry,  141 F.3d 56, 61 (2d Cir. 1998).

Hoffman's Complaint fails to allege Constitutional harm as a result of
officially promulgated custom or persistent practice or negligent
supervision. Neither the Complaint nor any of Hoffman's submissions make
reference to official customs or policies or negligent supervision.
Further, "a single incident alleged in a complaint . . . does not suffice
to establish a municipal policy." DeCarlo,  141 F.3d at 61 (quoting
Ricciuti v. New York City Transit Auth.,  941 F.2d 119, 123 (2d Cir.
1991)).

Hoffman does, however, seem to allege deliberate indifference. For example, the Complaint repeatedly alleges that various actions taken by County officials "were condoned and supported by the Legislative and policy making officers of the County of Delaware." Hoffman has failed, however, to proffer any facts or evidence tending to support his conclusory claims of deliberate indifference. There is no indication that this is a repeat occurrence or that the County was aware, or reasonably should have been aware, of any Constitutional injuries being inflicted by its employees and failed to take adequate remedial action. See DeCarlo, 141 F.3d at 61. In fact, Hoffman did not even address the issue of municipal liability in his opposition to the County's motion for summary judgment. Accordingly, the claims against the County of Delaware must be dismissed.

G. State Law Claims

Having dismissed all federal claims against Whitten, Moon, Talarico, and
the County of Delaware, there remains no independent basis for exercising
federal jurisdiction over those defendants and, accordingly, the pendent
state law claims against them must be dismissed. See 28 U.S.C. § 1367
(c)(3); Castellano v. Board of Trustees of Police Officers' Variable
Supplements Fund,  937 F.2d 752, 758 (2d Cir. 1991), cert. denied,
502 U.S. 941, 112 S.Ct. 378, 116 L.Ed.2d 329 (1991).

That leaves only the state law claims against Hamilton. Hamilton argues
that the intentional tort claims are barred by the one year statute of
limitations found at N.Y.C.P.L.R. § 215. Under New York law, false
arrest and false imprisonment claims accrue on the date of the release
from confinement. Ragland v. New York City Housing Auth.,  201 A.D.2d 7,
9, 613 N.Y.S.2d 937 (2d Dep't 1994) (accrual of false imprisonment);
Jackson v. Police Dept. of City of New York,  119 A.D.2d 551, 552,
500 N.Y.S.2d 553 (2d Dep't 1986) (same); Redding v. County of
Westchester, 59 A.D.2d 776, 398 N.Y.S.2d 732 (2d Dep't 1977) (accrual of
false arrest). Here, Hoffman was released from the hospital on July 23,
1996 and the instant lawsuit was commenced on July 15, 1997, less than
one year from the date of release from confinement. Thus, those actions
are timely. As discussed above, questions of fact remain regarding
Hamilton's status as a police officer and his authority to detain
Hoffman. Thus, the Court cannot now say as a matter of law that
Hamilton's actions are privileged or that he is entitled to immunity
protection. See Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998).

With respect to Hoffman's claim for the intentional infliction of emotional distress, it could reasonably be argued that any alleged outrageous conduct continued until the date of Hoffman's release from the hospital and, thus, that claim also is timely. See Yokley v. Henry-Clark Assocs., 170 Misc.2d 779, 781, 655 N.Y.S.2d 714 (2d Dep't 1996).

Turning to the merits of Hoffman's claim against Hamilton for the
intentional infliction of emotional distress, however, such claim must be
dismissed. A claim for intentional infliction of emotional distress
requires a showing of (1) extreme and outrageous conduct; (2) intent to
cause, or reckless disregard of a substantial probability of causing,
severe emotional distress; (3) a causal connection between the conduct
and the injury; and (4) severe emotional distress. See Stuto v.
Fleishman,  164 F.3d 820, 827 (2d Cir. 1999) (citing Howell v. New York
Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)).
On a motion for summary judgment, "[w]hether the conduct alleged may
reasonably be regarded as so extreme and outrageous as to permit recovery
is a matter for the court to determine." Id. There is no evidence in the
present matter demonstrating that Hamilton intentionally or recklessly
engaged in conduct that was so extreme and outrageous as to transcend the
bounds of decency and that would be regarded as atrocious and utterly
intolerable in a civilized society. See id. at 828-829.

III. CONCLUSION

For the foregoing reasons, the motions by Defendants County of Delaware, Talarico, Moon and Whitten are GRANTED and the Complaint is DISMISSED as to those defendants in its entirety. Defendant Hamilton's motion for summary judgment is GRANTED IN PART and the causes of action against him asserting violations of the First Amendment and the intentional infliction of emotional distress are DISMISSED. In all other respects, Hamilton's motion for summary judgment is DENIED.

IT IS SO ORDERED


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