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March 11, 2002


The opinion of the court was delivered by: David N. Hurd, United States District Judge.



Plaintiff Basil Osbourne Thompson ("Thompson" or "plaintiff") commenced the instant action pursuant to 42 U.S.C. § 1983 and 1988 alleging violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Plaintiff also asserts state law claims for abuse of process, malicious prosecution, false arrest, unlawful imprisonment, negligence, and intentional infliction of emotional distress.*fn1 He seeks compensatory and punitive damages. Defendant, New York State police officer, Daniel B. Sweet ("Officer Sweet"), has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff opposes. Oral argument was heard on August 24, 2001, in Albany, New York. Decision was reserved.


The following are the facts in the light most favorable to the non-moving plaintiff. Thompson is a resident alien who was convicted in 1992 in federal court of a misdemeanor for filing false citizenship papers. In that same year, he was also convicted in state court of endangering the welfare of a minor.

On four separate occasions during 1998, Thompson purchased firearms at a Walmart store in Hudson, New York. On each of these occasions, plaintiff filled out a form required by the United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms ("ATF") indicating (1) that he had never been convicted of a felony, and (2) that he was a United States citizen. Subsequently, on April 9, 1999, his name appeared during an ATF records check as someone who might have purchased the guns illegally based on his prior criminal record. The case was referred to Officer Sweet for investigation. Based on the records received by Officer Sweet,*fn2 and his subsequent interview with the Walmart employee who sold Thompson the guns, Sweet prepared an affidavit to obtain an arrest warrant. The warrant stated that Thompson had lied about the fact that he was a convicted felon. A warrant was issued on June 8, 1999, for plaintiff's arrest on four counts of criminal possession of a weapon. Plaintiff was arrested on July 1, 1999.

At the time of his arrest, Thompson provided the state police with a certificate of conviction that showed he had been convicted of a misdemeanor, not a felony. Thompson requested that the police officers contact the United States Probation Office in Albany to confirm that he had never been convicted of a felony. The police officers then used their radio dispatch instrument to contact Officer Sweet. The officers informed Officer Sweet that Thompson had documents which indicated that he had only been convicted of a misdemeanor. However, Thompson was still arrested and held in jail for twelve days on $30,000 bail. This first set of charges were subsequently dismissed.

After Thompson's initial arrest, Officer Sweet signed four additional felony complaints against plaintiff and he was arrested again based on the fact that (1) Thompson's prior arrest for endangering the welfare of a child was a "serious crime" that prevented him from owning a weapon under New York law, and (2) he had lied on the ATF form when he indicated that he was an United States citizen. Thompson ultimately pled guilty to a misdemeanor based on the second set of charges.*fn3


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 (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 (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 (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. 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; Matsushita Elec. Indus. Co., 475 U.S. at 587. 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; Matsushita Elec. Indus. Co., 475 U.S. at 587. 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 Unlawful Imprisonment Claim

Defendant Sweet seeks summary judgment dismissing the plaintiff's false arrest and unlawful imprisonment claim against him on the ground that plaintiff's first arrest was supported by probable cause. "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 ...

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