The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Michael Naccarato ("Naccarato" or "plaintiff")
commenced the instant action pursuant to 42 U.S.C. § 1983 and
1988 alleging violations of his First, Fourth, Fifth, and
Fourteenth Amendment rights. Plaintiff also asserts pendent state
law claims for assault and battery, false arrest and
imprisonment, and intentional and negligent infliction of
emotional distress. The defendants New York State Troopers Mark
Scarselli ("Tpr.Scarselli") and Craig Evert ("Tpr.Evert") have
moved for partial summary judgment, pursuant to Fed.R.Civ.P. 56.
Plaintiff opposes. Oral argument was heard on August 25, 2000 in
Albany, New York. Decision was reserved.
This action arose out of incidents occurring in the early
morning hours of July 19, 1997 in Kingston, New York. The
defendants were working in a police car as part of a DWI patrol.
They stopped the plaintiff after observing him change lanes
without signaling while driving his car on Albany Avenue. He was
not wearing his seatbelt and was unable to produce his driver's
license when asked. This is
where the parties' version of events diverge.
According to the plaintiff, before he was issued the traffic
summonses, he accused Tpr. Scarselli of harassing him because of
a prior stop by Tpr. Scarselli a few weeks earlier.*fn1 The
defendants went back to their car to prepare three traffic
tickets. Shortly after, Tpr. Scarselli brought the tickets to
Naccarato and began to explain them. The two men then engaged in
a heated conversation. After Tpr. Scarselli finished explaining
the tickets to plaintiff, he went back to his police car.
Naccarato reentered traffic and the defendants followed behind.
The parties proceeded down Pearl Street. Both vehicles turned
right onto Washington Avenue. At the intersection of Washington
Avenue and North Front Street, plaintiff stopped in the left lane
at the traffic light. The defendants moved into the right lane
next to plaintiff. While stopped at the light, plaintiff claims
that Tpr. Scarselli mouthed a profanity at him.
When the light turned green, both parties proceeded down
Washington Avenue and the defendants turned on their emergency
lights in order to stop the plaintiff again. Tpr. Scarselli ran
up to the car, told plaintiff that he was under arrest, reached
into plaintiff's car and put it into park, and then pulled
Naccarato out of the car. Plaintiff cooperated and got down on
the pavement to be handcuffed. Tpr. Scarselli forced Naccarato's
left arm up towards his shoulder blade, causing the plaintiff to
immediately complain of shoulder pain. He was placed in the
police car and taken to the police barracks. He remained there
for an hour or two before being taken to the hospital for
According to the defendants,*fn2 after being stopped the first
time, Naccarato asked Tpr. Evert whether his partner's name was
Mark Scarselli and why Tpr. Scarselli was harassing him. Tpr.
Scarselli heard profanities and his name, so he went to the
driver's side of the vehicle to see if Tpr. Evert needed
assistance. Plaintiff verbally threatened Tpr. Scarselli. The
defendants went back to their vehicle to prepare the traffic
tickets. Before returning to the plaintiff's vehicle, Tpr.
Scarselli placed a tape recorder in his pocket to record his
conversation because of plaintiff's prior threats against him.
Tpr. Scarselli gave Naccarato the tickets and explained the
proper procedures to follow. Plaintiff threatened Tpr. Scarselli
again, which was recorded on tape. The parties reentered traffic
and stopped side by side at the traffic light at the Washington
Avenue/North Front Street intersection. There, plaintiff verbally
threatened Tpr. Scarselli again. The defendants then turned on
their emergency lights and stopped the plaintiff a second time.
When Tpr. Scarselli approached to make the arrest, he saw the
car jerk, so he reached in, put it in park, and ordered Naccarato
out of the car. When he failed to comply, the defendants pulled
him out. Plaintiff continued to struggle while being handcuffed.
He was placed in the police car and left the scene, at which time
he complained of shoulder pain for the first time. Tpr. Scarselli
arrested plaintiff for harassment in the second degree and
resisting arrest. Naccarato was taken to the hospital for medical
treatment. He was then arraigned and released. Plaintiff was
acquitted of both charges.
The defendants seek dismissal of the following claims: All
claims against Tpr. Evert; and false arrest and imprisonment
(federal and state) with respect to the harassment charge,
malicious prosecution on the harassment charge, First and Fifth
Amendment claims, and state claims for
intentional and negligent infliction of emotional distress
against Tpr. Scarselli.*fn3 The plaintiff does not oppose
dismissal of his Fifth Amendment claim and his claim against Tpr.
Evert for malicious prosecution. Accordingly, this opinion will
only address the following: False arrest and imprisonment claims
(federal and state) against both defendants with respect to the
harassment charge, malicious prosecution claim against Tpr.
Scarselli with respect to the harassment charge, First Amendment
claim against both defendants, pendent state claims for
intentional and negligent infliction of emotional distress
against both defendants, and the excessive force and assault and
battery claims against Tpr. Evert.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.
1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving
party "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc.,
477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment
motion, evidence must exist upon which a reasonable jury could
return a verdict for the nonmovant. Liberty Lobby, Inc., 477
U.S. at 248-49, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. Thus, summary judgment is proper
where there is "little or no evidence . . . in support of the
non-moving party's case." Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations
B. False Arrest and Imprisonment Claim
"A § 1983 claim for false arrest, resting on the Fourth
Amendment right of an individual to be free from unreasonable
seizures, including arrest without probable cause is
substantially the same as a claim for false arrest under New York
law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(citation omitted). Under New York law, in order to assert a
false arrest claim, a plaintiff must demonstrate that "the
defendant intentionally confined him without his consent and
without justification." Id. "The existence of probable cause to
arrest constitutes ...