heated exchange occurred between Naccarato and Tpr. Scarselli,
which prompted the second stop. At this stop, the defendants
allegedly physically injured the plaintiff while arresting him.
Viewing the facts in a light most favorable to the plaintiff,
there is sufficient evidence from which a jury may infer malice.
There are questions of fact concerning whether the defendants had
probable cause to arrest Naccarato for harassment in the second
degree and whether plaintiff was antagonized and physically
assaulted by Tpr. Scarselli. Accordingly, defendant Tpr.
Scarselli's motion to dismiss the plaintiff's malicious
prosecution claim against him must be denied.
D. Qualified Immunity
The defendants also contend that they are entitled to qualified
immunity with respect to plaintiff's false arrest and
imprisonment and malicious prosecution claims. "The doctrine of
qualified immunity shields police officers acting in their
official capacity from suits for damages under 42 U.S.C. § 1983,
unless their actions violate clearly-established rights of which
an objectively reasonable official would have known." Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982); Ricciuti, 124 F.3d at 127). A decision in favor of a
public official based on qualified immunity is appropriate if 1)
the conduct attributed to him is not prohibited by federal law,
or, if such conduct is so prohibited, 2) if the plaintiff's right
not to be subjected to such conduct was not clearly established
at the time of the defendant's actions, or 3) if it was not
objectively reasonable for the official to know that his conduct
violated that right. See X-Men Sec., Inc. v. Pataki,
196 F.3d 56, 65-66 (2d Cir. 1999); see also Thomas, 165 F.3d at 142-43.
"The objective reasonableness test is met . . . if `officers of
reasonable competence could disagree' on the legality of the
defendant's actions." Thomas, 165 F.3d at 143 (quoting Lennon
v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)).
The right to be free from arrests which are not based on
probable cause is clearly established. Martinez v. Simonetti,
202 F.3d 625, 634 (2d Cir. 2000) (citations omitted). Therefore,
accepting the facts as alleged by the plaintiff, and drawing all
inferences most favorably to him, it must be determined whether
as a matter of law it was objectively reasonable for the
defendant to believe that his conduct did not violate the
plaintiff's clearly established rights. See Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir.) (citing Robison v. Via,
821 F.2d 913, 921 (2d Cir. 1987)), aff'g 761 F. Supp. 962
Viewing the facts most favorably to the plaintiff, the
defendants are not entitled to qualified immunity as a matter of
law. As discussed above, supra p. 41-42, it is questionable
whether, under the circumstances of the instant case, a
reasonable officer would have believed there was probable cause
to arrest the plaintiff for harassment in the second degree.
Whether or not questions of fact on this issue are to be
presented to a jury must await trial. See Golino, 761 F. Supp.
at 972 (denying the defendants' motion for summary judgment with
respect to the qualified immunity defense without prejudice to
renew on a motion for a directed verdict or a motion for judgment
notwithstanding the verdict); see also Warren v. Dwyer,
906 F.2d 70, 74 (2d Cir. 1990) (stating that, where factual issues
exist prior to trial, defense of qualified immunity may be raised
at the close of plaintiff's case on a motion for a directed
verdict and on a subsequent motion for judgment notwithstanding
the verdict) (citing Krause v. Bennett, 887 F.2d 362, 365 (2d
E. First Amendment Claim
The defendants allege that plaintiff's claim that they
retaliated against him for exercising his free speech rights
under the First Amendment must be dismissed because he has failed
to plead the alleged
violation with sufficient particularity. A review of the
plaintiff's amended complaint demonstrates that the defendants
are correct. However, discovery has been conducted in this case
and matters outside the pleadings have been submitted and
considered. Therefore, the merits of plaintiff's First Amendment
claim will be addressed rather than dismiss it because of
insufficient pleading. See Fed.R.Civ.P. 12(b) (stating that,
"[i]f, on a motion . . . to dismiss for failure of the pleading
to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment .
The defendants next contend that the plaintiff has failed to
submit any evidence that his speech was protected under the First
Amendment, as it was not a matter of public concern. However,
this argument is rejected.
As an initial matter, "[t]he First Amendment guarantees all
persons freedom to express their views." X-Men Sec., Inc., 196
F.3d at 68-69. In order to state a § 1983 claim for retaliation
for the exercise of First Amendment rights, a plaintiff must show
that 1) his activity was protected by the First Amendment and 2)
the defendant's conduct was in response to that protected
activity. See Posr v. Court Officer Shield # 207, 180 F.3d 409,
418 (2d Cir. 1999); see also Smith v. Metro North Commuter
R.R., No. 98 Civ. 2528 RWS, 2000 WL 1449865, at *4 (S.D.N Y
Sept.29, 2000) (stating that a § 1983 claim lies by private
individuals who are punished by public officials for their
The United States Supreme Court has stated that "the First
Amendment protects a significant amount of verbal criticism and
challenge directed at police officers." City of Houston v.
Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).
"Speech is protected `unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above
public inconvenience, annoyance or unrest.'" Metro North
Commuter R.R., 2000 WL 1449865, at *5 (quoting Terminiello v.
City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131
(1949)). Thus, "[p]ure, non-obscene speech is protected unless
the words, by their very utterance, inflict injury or tend to
evoke immediate violence or other breach of the peace." Id.
The defendants have not cited any cases which stand for the
proposition that speech is only protected by the First Amendment
if is relates to a matter of public concern. In fact, in light of
the above authorities, such is apparently not the case. In
addition, plaintiff's First Amendment claim is premised on his
statements to Tpr. Scarselli to the effect that Naccarato would
"see him out." Viewing this statement and the other pertinent
facts in a light most favorably to the plaintiff, plaintiff was
not threatening immediate harm to Tpr. Scarselli. Therefore,
defendants' motion to dismiss plaintiff's First Amendment claim
must be denied.
F. Intentional and Negligent Infliction of Emotional
In New York, "intentional infliction of emotional distress is a
theory of recovery that is to be invoked only as a last resort,"
when traditional tort remedies are unavailable. See EEOC v. Die
Fliedermaus, L.L.C., 77 F. Supp.2d 460, 472 (S.D.N Y
1999) (quoting McIntyre v. Manhattan Ford, Lincoln-Mercury,
Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167, 169 (1st Dep't 1998)).
Accordingly, "[n]o intentional infliction of emotional distress
claim will lie where the conduct underlying the claim falls
within the ambit of traditional tort liability." Hansel v.
Sheridan, 991 F. Supp. 69, 75 (N.D.N.Y. 1998) (McAvoy, Chief
Judge). In the instant case, since the conduct complained of are
encompassed in plaintiff's claims for assault and battery and
malicious prosecution, plaintiff's claim for intentional
infliction of emotional
distress must be dismissed.*fn5
Plaintiffs negligent infliction of emotional distress must also
be dismissed. When a plaintiff brings excessive force and assault
claims which are premised upon a defendant's allegedly
intentional conduct, a negligence claim with respect to the same
conduct will not lie. See Hansel, 991 F. Supp. at 75-76; see
also Mazurkiewicz v. New York City Transit Auth., 810 F. Supp. 563,
570-71 (S.D.N.Y. 1993) (holding that "[p]laintiff cannot
argue that defendants engaged in intentional conduct that forms
the basis of an assault and § 1983 excessive force claim and also
argue that defendants were negligent towards plaintiff.");
Universal Calvary Church v. City of New York, No. 96 Civ.
4606(RPP), 2000 WL 1745048, at *12 (S.D.N.Y. Nov.28,
2000) (granting summary judgment with respect to the plaintiffs'
negligence and negligent infliction of emotional distress claims
because the evidence established intentional conduct for assault
and battery, rather than negligence). Since plaintiff's claims
against the defendants are premised on their intentional conduct,
his claim for negligent infliction of emotional distress must
also be dismissed.
G. Remaining Claims Against Tpr. Evert
Tpr. Evert seeks dismissal of plaintiff's excessive force and
assault and battery claims against him. He alleges that plaintiff
has presented no evidence that he ever touched Naccarato during
the course of the arrest. However, review of the documents
submitted in support of the defendants' motion reveals the
contrary. Tpr. Scarselli testified that after they stopped the
plaintiff the second time, "[e]ventually we get him out on to
the ground." (Scarselli Dep. at 44) (emphasis added). Even more
revealing is Tpr. Evert's own testimony that both he and Tpr.
Scarselli reached into the plaintiff's car, that he grabbed
Naccarato's left arm to pull him from the vehicle, and that "[w]e
place him face down on the driveway or on the road and tried to
handcuff him behind his back." (Evert Dep. at 47-49.) This is
sufficient evidence that Tpr. Evert was involved in the arrest
and handcuffing of the plaintiff. Accordingly, summary judgment
on this issue must be denied.
To sum up, questions of fact exist concerning whether the
defendants had probable cause to arrest the plaintiff for
harassment in the second degree, thus precluding summary judgment
on plaintiff's false arrest and imprisonment claims. There is
sufficient evidence in the record such that plaintiff's malicious
prosecution claim against Tpr. Scarselli and First Amendment
claim against both defendants can survive summary judgment. The
evidence also demonstrates that plaintiff's excessive force and
assault and battery claims against Tpr. Evert should not be
summarily dismissed. However, plaintiff's pendent state claims
for intentional and negligent infliction of emotional distress
must be dismissed.
Accordingly, it is
ORDERED, that defendants' motion for partial summary judgment
is GRANTED in part and DENIED in part;
1. The defendants' motion is GRANTED to the extent that
plaintiff's Fifth Amendment claim, malicious prosecution claim
against Trooper Craig Evert, and state law claims for intentional
infliction of emotional distress and negligent infliction of
emotional distress are DISMISSED;
2. The defendants' motion is DENIED in all other respects, and
this action shall proceed to trial with respect to the following
a. Excessive force (federal) and assault and battery (state)
against both defendants Trooper Mark Scarselli and Trooper Craig
b. False arrest and imprisonment (state and federal) against
both defendants Trooper Mark Scarselli and Trooper Craig Evert;
c. Malicious prosecution against Trooper Mark Scarselli; and
d. First Amendment against both defendants Trooper Mark
Scarselli and Trooper Craig Evert.
IT IS SO ORDERED.