The opinion of the court was delivered by: David N. Hurd, United States District Judge.
MEMORANDUM-DECISION and ORDER
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
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
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 § 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 ...