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NACCARATO v. SCARSELLI

December 14, 2000

MICHAEL A. NACCARATO, PLAINTIFF,
V.
TROOPER MARK A. SCARSELLI AND TROOPER CRAIG EVERT, DEFENDANTS.



The opinion of the court was delivered by: Hurd, District Judge.

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

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.

II. FACTS

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 treatment.

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.

III. DISCUSSION

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 omitted).

B. False Arrest and Imprisonment Claim

"A ยง 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 ...


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