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ARUM v. MILLER

July 25, 2003

CAROLE ARUM, PLAINTIFF, AGAINST MR. RICHARD MILLER, DIRECTOR OF PUPIL SERVICES, SYOSSET, S.D., POLICE OFFICER JOHN KLESSERATH, POLICE OFFICER JOHN WHEELER, SERGEANT RALPH HOFFMAN, DET. DAVID M. OHAYON, COUNTY OF NASSAU POLICE DEPARTMENT, COUNTY OF NASSAU, N.Y., DEFENDANTS.


The opinion of the court was delivered by: Arthur Spatt, District Judge

MEMORANDUM OF DECISION AND ORDER

The pro se plaintiff Carole Arum ("Arum" or the "plaintiff") brings this action against the defendants Richard Miller ("Miller"), Police Officer John Klesserath ("Klesserath"), Police Officer John Wheeler ("Wheeler"), Sergeant Ralph Hoffman ("Hoffman"), Detective David M. Ohayon ("Ohayon"), the County of Nassau Police Department (the "Nassau County Police Department") and the County of Nassau (collectively, the "defendants") alleging that, among other things, they falsely arrested and maliciously prosecuted her in violation of 42 U.S.C. § 1983 ("Section 1983") and New York State law. Presently before the Court is Miller's motion for summary judgment dismissing all claims against him pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56").

I. BACKGROUND

A. The Procedural History

On November 6, 2000, the plaintiff filed a complaint against the defendants alleging that they violated her constitutional rights during her arrest at the Syosset School District. On March 20, 2002, the Court denied Miller's motion to dismiss the claims of malicious prosecution and excessive force under Section 1983 and granted his motion to dismiss the claims of abuse of authority, "telephoning the police", false arrest, and all claims under New York State law. Arum v. Miller, 193 F. Supp.2d 572 (E.D.N.Y. 2002).

On February 8, 2003, the Court granted the plaintiff's motion for reconsideration allowing her to proceed with her claims against Miller under New York State law. Arum v. Miller, No. 00-7476, slip op. (E.D.N.Y. Feb. 8, 2003). In that decision, the Court also denied Miller's motion for summary judgment without prejudice on the ground that he did not comply with Rule 56.2 of the Local Rules of the United States District Courts for the Eastern and Southern Districts of New York ("Rule 56.2"). Id. at 8. Rule 56.2 requires a represented party who moves for summary judgment against a pro se litigant to apprise her of the consequences of failing to respond to a motion for summary judgment. Shortly thereafter, the Court granted Miller permission to refile his motion for summary judgment. Miller has now refiled his motion in compliance with Rule 56.2.

B. The Undisputed Facts

The plaintiff is a resident of the Syosset Central School District (the "School District"). Miller is the Director of Pupil Personnel Services for the School District. On January 5, 2000, the plaintiff went to the School District's offices to discuss her son's bus transportation with Miller. There, the plaintiff asked to review her son's educational file. The file was then brought to her. While she was reviewing the file, Miller took it from her and struck her in the mouth with his elbow. As a result of this incident, the plaintiff suffered a bruised lip and chipped tooth.

Shortly after this incident, the police arrived. The police asked the plaintiff to leave the premises voluntarily. She refused. The police then informed Miller that since the plaintiff refused to leave voluntarily, he was required to fill out a trespass complaint in order for them to remove her. Thereafter, the police informed the plaintiff that if she did not leave voluntarily, they would have to arrest her. In response, the plaintiff held out her hands to be handcuffed. The police then arrested her.

Thereafter, an assistant district attorney from the Nassau County District Attorney's Office who was handling the trespass charge asked the School District whether it wished to pursue charges against the plaintiff. The School District stated that it only wanted the plaintiff to leave the premises and did not want her prosecuted. Miller also did not want her prosecuted. Rather, Miller just wanted her to leave the premises that day. Eventually, the Nassau County District Attorney dismissed the trespass charge in the interest of justice pursuant to Criminal Procedure Law § 170.30(1)(g).

II. DISCUSSION

A. The Standard for Summary Judgment

Summary judgment must "be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the party moving for summary judgment to establish the absence of any genuine issues of material fact, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505 (1986), and any ambiguities must be resolved in favor of the non-movant, see Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548 (1986).

Where the movant shows that there are no genuine issues of material fact, the non-movant "must come forward with `specific facts showing that there is a genuine issue for trial.'" Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 1356 n. 11 (1986) (quoting Fed.R.Civ.P. 56(e)). The non-movant is unable to escape summary judgment by asserting that unspecified disputed material facts exist or through conjecture or speculation. Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. ...


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