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March 14, 2002


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.

Mrs. Tobias began her employment with the Balunases and moved into the cottage on or about January 18, 1999. During the first few weeks of the arrangement, Mr. Tobias lived at the cottage along with his wife and children. In February 1999, however, Mr. Balunas explicitly and emphatically told Mrs. Tobias that Mr. Tobias was no longer allowed to live in the cottage and, furthermore, that the Balunases did not want him on the property at all.*fn4 Mrs. Tobias relayed this message to Mr. Tobias, who promptly moved out. W. Tobias Dep. at 16:20-21. For the next several months, however, Mr. Tobias frequently (and perhaps surreptitiously) visited his family at the cottage against the clear wishes of the Balunases of which he was aware.

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 complaint.

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.

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.


I. Causes of Action

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 County").

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