United States District Court, Northern District of New York
March 12, 1999
EDWARD F. HOFFMAN, JR., PLAINTIFF,
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
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
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.
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 , 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
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
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
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
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
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
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
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.
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
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.
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
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.
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
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.
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
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.
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
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.
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