The opinion of the court was delivered by: Buchwald, District Judge.
The plaintiffs, all members of a single immediate family,
bring this § 1983 action against three state law enforcement
officers, two private citizens, and the County of Putnam, New
York, for alleged violations of their civil rights. Following
discovery, Deborah, Danielle, and Taylor Tobias withdrew all
their claims,*fn1 and William Tobias withdrew his Fourth,
Fifth, Eleventh, Twelfth and Fourteenth causes of action. See
Letter from Anthony M. Giordano dated June 19, 2001. Before the
Court are cross-motions for summary judgment.*fn2 As
explained below, we dispose of these motions as follows: We
grant summary judgment to Gary and Carmel Balunas and the County
of Putnam on all claims against them, and we grant summary
judgment to Deputy Sheriffs Thomas Velotti, Kevin Cargain, and
William Meyer on all claims against them, except for the
excessive force claims arising out of their attempts to handcuff
Mr. Tobias and carry him to a patrol car.
The basic facts of this case are not in dispute.*fn3
William and Deborah Tobias were married in 1988, but have lived
apart since 1996. They were never legally separated or divorced,
and during the relevant time period (early July 1999), Mrs.
Tobias lived with their two minor children in a relatively rural
part of Putnam County, New York, while Mr. Tobias maintained an
independent residence approximately twenty miles away, in
Katonah, New York. At that time, Mrs. Tobias worked for
defendants Gary and Carmel Balunas and, as part of her
compensation, was permitted to live with her children in a small
house (the "cottage") owned by the Balunases. The Balunases
owned a large parcel of land, on which there are several
single-family houses, including the cottage, were built. The
cottage is located about fifty to one hundred yards away from
the house in which the Balunases themselves lived.
On July 2, 1999, Mr. Balunas telephoned the police to make a
complaint against Mr. Tobias. Defendants Deputy Sheriffs Thomas
Velotti and Kevin Cargain of the Putnam County Shefiff's
Department ("PCSD") drove to the Balunases' house to investigate
the matter. They interviewed Mr. Balunas, who told them that he
had learned that Mr. Tobias was present at the cottage, and
thereafter had spoken to him on the telephone*fn5 and
requested that he leave the premises. According to Mr. Balunas,
Mr. Tobias threatened him by replying, "You better watch your
back, I'll be back for you." Velotti Dep. at 35:14-15. We note
that Mr. and Mrs. Tobias testified in their deposition that Mr.
Tobias did not speak, on the telephone or otherwise, with Mr.
Balunas on that date. W. Tobias Dep. at 16:9-11, 22:2-22; D.
Tobias Dep. at 12:10-13:5. Mr. Balunas declined to file criminal
charges against Mr. Tobias at that time.
Deputy Sheriffs Velotti and Cargain then went to the cottage
to interview Mr. Tobias. Mrs. Tobias spoke with the officers and
told them that he was not present at the cottage or in the area,
and that there was no cause for concern. W. Tobias Dep. at
23:3-9. As Mr. Tobias was familiar with several members of the
PCSD,*fn6 he called them to inquire into the investigation of
his alleged threat. He spoke with William Porteus, an officer
with whom he was acquainted, who recommended that Mr. Tobias
stay away from the cottage and Mr. Balunas "[t]o avoid
problems." Id. at 24:22.
Mr. Tobias did not stay away for long, however, and on the
afternoon of July 7, 1999, he went to the cottage to deliver
child support and to take his wife and children swimming. D.
Tobias Dep. at 14:16-15:3. The Balunases, apparently fed up with
Mr. Tobias's behavior,*fn7 called the PCSD and requested that
they come and
remove Mr. Tobias from his property because he was trespassing.
Deputy Sheriffs Velotti and Cargain again drove to the
Balunases' house and investigated this second complaint. The
Balunases again told the Deputy Sheriffs that Mr. Tobias was
trespassing on their property (the cottage) and that they did
not want him there. The Deputy Sheriffs then went to the
cottage. As they walked by the cottage's bay window, Mr. Tobias
noticed them, then exited the cottage and asked if he could help
them. W. Tobias Dep. at 38:5-8. The Deputy Sheriffs testified
that, based on their observations, Mr. Tobias seemed to be
significantly intoxicated. Cargain Dep. at 23:11-22; Velotti
Dep. at 53:12-54:4. Although Mr. Tobias admits that he "poured
[him]self a cocktail" shortly before the Deputy Sheriffs arrived
at the cottage, W. Tobias Dep. at 12:8-9, the Tobiases deny that
he was intoxicated. Id. at 13:4-7; D. Tobias Dep. at 16:2-3.
The Deputy Sheriffs told him that they had a trespassing
complaint from Mr. Balunas, and Mr. Tobias responded, "Fuck [Mr.
Balunas]. He's an asshole. He just don't like me."*fn8 W.
Tobias Dep. at 38:21-39:3. Mrs. Tobias testified that, at about
this time, she informed the Deputy Sheriffs that she was the
legal tenant of the cottage and that Mr. Tobias had her
permission to be on the premises. D. Tobias Dep. at 17:10-16.
Deputy Sheriff Cargain took Mrs. Tobias aside, and Deputy
Sheriff Velotti told Mr. Tobias, "Well, let's get in the car and
talk about this." W. Tobias Dep. at 39:17-18. The Deputy
Sheriffs told Mr. Tobias that they were merely investigating a
complaint, and explicitly informed him that he was not under
arrest. Id. at 41:11-20. Mr. Tobias responded by saying, "We
can talk about this all day, but unless I'm under arrest I'm not
getting in the fucking [patrol] car."*fn9 Id. at 40:8-10.
At this point, the defendants' and the plaintiffs versions of
the facts begin to differ significantly. According to Mr.
Tobias, Deputy Sheriff Velotti "made a crazy face and reached
for something on his belt," which he believed to be possibly
pepper spray or a club. Id. at 40:12-13, 42:5-6. The
defendants deny this in its entirety, and Deputy Sheriff Cargain
testified that Mr. Tobias stated, "Come and get me[,]
motherfucker," and "None of you guys can catch me. I'm too fast
for you." Cargain Dep. at 28:6-8. Both sides agree, however,
that moments after Mr. Tobias refused to get in the patrol car,
he ran away from the Deputy Sheriffs and into the nearby woods.
The Deputy Sheriffs made a brief attempt to catch Mr. Tobias,
but were unsuccessful. They then went back to the Balunases'
house to take further information regarding the trespass
While the Deputy Sheriffs were speaking to Mr. Balunas, Mr.
Tobias sneaked back from the woods and hid in a crawl space
under the cottage. W. Tobias Dep. 42:24-25. Upon realizing that
the Deputy Sheriffs were at the Balunases' house, and that,
therefore, it was safe to come out of hiding. Mr. Tobias went
inside the cottage and called PCSD headquarters, apparently
hoping to speak with someone he knew from his undercover
narcotics work. Id. at 43:14-24. He spoke to the receptionist
for the narcotics unit, who told him, "Billy, what the heck are
you doing? Just surrender yourself and we'll straighten
this out when you get down here." Id. at 44:8-11.
Mr. Tobias then went outside the cottage and hid behind a
large tree. He testified that when he saw one of the Deputy
Sheriffs returning from the Balunases' house, he stepped out
from behind the tree "in a position of surrender" and "with
[his] hands open" to show that he was unarmed. Id. at
46:18-20. Mrs. Tobias testified that when he came out from
behind the tree, his hands were "out at his sides." D. Tobias
Dep. at 25:7. Ronald Graves, a non-party neighbor, testified
that Mr. Tobias had his hands "down to his side" at this time,
and that at no point did he "have his hands raised up in the air
as if to surrender." Graves Dep. at 16-23.
Upon spotting Mr. Tobias, the Deputy Sheriffs ran towards him,
whereupon he again began running away from them and towards the
woods. En route, however, he slipped on the wet grass under a
volleyball net located on the property. The Deputy Sheriffs
caught up to him and informed him that he was under arrest for
disorderly conduct. According to Deputy Sheriff Velotti, Mr.
Tobias "put his hands up[,] made fists[, and] said, `Take it to
me.'" Velotti Dep. 24:25-25:2. According to Deputy Sheriff
Cargain, Mr. Tobias assumed a "fighter's stance" and said, "I'm
a violent motherfucker. Come and get me." Cargain Dep. at
37:18-38:3. Deputy Sheriff Cargain then sprayed Mr. Tobias in
the face with pepper spray. Id. at 38:3-4.
There is again a significant factual dispute over what exactly
transpired at this point. Deputy Sheriff William Meyer, who
responded to a call for assistance from Deputy Sheriffs Velotti
and Cargain, arrived on the scene at this time, and testified
that the first thing he saw was Mr. Tobias "fighting with the
two Deputy Sheriffs." Meyer Dep. at 16:23-24. Specifically,
Deputy Sheriff Meyer testified that Mr. Tobias was, in several
different positions, "struggling, screaming, [and] yelling" and
that he was "punching" the Deputy Sheriffs. Id. at 17:3-18:6.
Deputy Sheriff Velotti testified that Mr. Tobias was "fighting,
punching, biting" and that he feared for his own safety. Velotti
Dep. at 11:25-12:3. He also stated that Mr. Tobias kicked him in
the upper thigh. Id. at 46:11-14. Deputy Sheriff Cargain
testified, inter alia, that Mr. Tobias bit his hand as he
tried to handcuff him. Cargain Dep. at 10:19-25, 20:17-21. Mr.
Tobias testified that he did not intentionally punch or kick any
of the Deputy Sheriffs, W. Tobias Dep. at 52:7-11, 51:23-24, but
he stated that he was "struggling to get up" off the ground by
"trying to roll the officer[s] off my back," Id. at 51:11, and
that "[i]f there was somebody behind me there and I was
thrashing, he might have got caught with a foot." Id. at
52:4-6. He also testified that his arms were stuck under him as
he struggled. Id. at 52:10-11. Mrs. Tobias testified that Mr.
Tobias "was trying to just stop the beating," but did not
"intentionally kick anyone." D. Tobias Dep. at 27:3-10. It is
undisputed, however, that Deputy Sheriff Cargain punched Mr.
Tobias three times in the back of the head in reaction to being
bitten by him.*fn10 Cargain Dep. at 20:20-22, 9:7-9; Velotti
Dep. at 22:6-7.
Eventually, the Deputy Sheriffs handcuffed Mr. Tobias with his
hands behind his back. Deputy Sheriff Velotti told Mr. Tobias
that they were going to pick him up and bring him to the patrol
car, but Mr. Tobias continued to struggle and fight. Velotti
Dep. at 44:12-45:21; Meyer Dep. at 23:9-14. The Deputy Sheriffs
that, even though Mr. Tobias was handcuffed, they were unable to
restrain him, he continued to kick and flail, and, therefore,
they feared for their own safety and for the safety of the
Balunases. Id. at 11:24-12:4; Cargain Dep. at 26:11-14; Meyer
Dep. at 29:11-12. Mr. Graves's testimony strongly supports this
characterization. See Graves Dep. at 29:13-30:7, 33:4-5. In
his deposition, Mr. Tobias testified that after he was
handcuffed, he "may have thrashed around a little bit," and
acknowledged that he was violently resisting the Deputy
Sheriffs' attempts to restrain him and place him in the patrol
car. W. Tobias Dep. at 54:6-8; see also id. at 51:11-15 (he
was "[r]olling, trying to get the officer off [his] back");
id. at 52:4-6 (an officer "might have got caught with a
foot"); id. at 59:7-8 (he "surrendered" only after he was
placed in the patrol car). Mrs. Tobias denied that Mr. Tobias
intentionally kicked anyone, but admitted that he was "moving to
try to get free" from the Deputy Sheriffs. D. Tobias Dep. at
In order to control Mr. Tobias, Deputy Sheriff Velotti decided
that they should tie his arms and legs together with a rope.
Velotti Dep. at 10:9-11. Accordingly, the three Deputy Sheriffs
tied Mr. Tobias's feet together, then tied his feet to his hands
behind his back.*fn11 Id.; W. Tobias Dep. at 55:7-9. His
feet were about two feet from his hands. Velotti Dep. at
11:20-21. It is undisputed that Mr. Tobias was carried by the
Deputy Sheriffs to the patrol car while tied in a four-point
restraint. Mr. Tobias contends, however, that he was "dragged,
picked up, dropped, bounced," and then thrown into the patrol
car. W. Tobias Dep. at 55:20-23. Mrs. Tobias testified that the
Deputy Sheriffs "picked [Mr. Tobias] up and dragged him onto the
pavement. Then they dropped him. He caught the full blow in his
chest as his head was pulled back from his body by the force of
the rope and his legs. They dragged him a few more feet and then
they dragged him up the stairs, bouncing on the way." D. Tobias
Dep. at 28:13-19. The defendants deny dropping Mr. Tobias as
they brought him to the patrol car. Meyer Dep. at 34:19.
The Deputy Sheriffs then drove Mr. Tobias to the Sheriffs
Department, whereupon the ropes that bound him were removed. W.
Tobias Dep. at 59:9-11. Mr. Tobias spent several days in jail
following these events.
For the sake of clarity, we set out the causes of action that
remain in this case.*fn12
Mr. Tobias brings three classes of claims for violations of
his rights under the United States Constitution pursuant to
42 U.S.C. § 1983. He brings claims against Deputy Sheriffs Velotti,
Cargain, and Meyer (collectively, the "officer defendants");
against the Balunases; and against the County of Putnam ("the
Mr. Tobias asserts six claims against the officer defendants,
alleging violations of his rights under the First, Fourth,
Eighth, and Fourteenth Amendments: first, that they entered and
searched the cottage
premises without lawful right, warrant, or just cause to do so;
second, that they unlawfully detained and arrested him; third,
that they maliciously prosecuted him, subjected him to malicious
abuse of process, and falsely imprisoned him; fourth, that they
used unnecessary and excessive force in arresting him; fifth,
that they showed deliberate ...