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POSR v. KILLACKEY

July 25, 2003

POSR A. POSR, PLAINTIFF,
v.
N.Y.S. COURT OFFICER SERGEANT VINCENT KILLACKEY #052660714, DEFENDANT.



The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

REPORT AND RECOMMENDATION

Posr A. Posr, the pro se plaintiff in this action, filed a complaint alleging 13 separate causes of action against New York State Court Officer, Vincent Killackey. Killackey previously moved for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). This Court granted Killackey's motion to dismiss some of Posr's claims. Killackey now moves for summary judgment pursuant to Fed.R.Civ.P. 56 with respect to the remaining claims, which allege unlawful seizure, false arrest and malicious prosecution. For the following reasons, Killackey's motion for summary judgment should be granted.

I. BACKGROUND

A. Factual History

Some time prior to May 11, 1998, Posr and Dyandria Murray entered into a contract under which Posr was to be compensated for videotaping a proceeding Murray expected to attend in Family Court. Deposition of Posr A. Posr, dated February 26, 2003 ("Posr's Dep.") (attached as Exhibit B to the Declaration of Susan M. Barbour, dated April 7, 2003 ("Barbour's Decl.")), at 15-16, 26-28. Posr served all parties with an "Order to Show Cause" as to why he should be allowed to film the Murray case proceedings and filed the Order with the Family Court clerk's office. Id. at 28-32. This "Order to Show Cause" was apparently not signed by a judge in light of Posr's testimony that the presiding judge, Judge Sosa-Litner, did not "respond" to it. Id. at 33. In addition, Posr has placed in the record a transcript of the Family Court proceeding at issue in which Judge Sosa-Litner refers to an "application" by Posr to film proceedings as "not legitimately filed." See Declaration/Plaintiff's Rule 56.1 Statement, dated April 28, 2003, Exhibit 1, at 5-6.

On May 11, 1998, Posr attempted to enter Judge Sosa-Litner's courtroom in the Family Court, located on the 9th floor of 60 Centre Street, with a video camera to film the proceedings. Posr's Dep. at 50-52. Killackey told Posr that he could not bring a camera into the courtroom since "cameras are not allowed." Id. at 58-59, 62. Posr attempted to go into the courtroom anyway but Killackey "blocked him" from doing so by standing in front of the doorway. Id. at 61-62. Posr tried to squeeze through the space between Killackey and the door "maybe four, five" times, id. at 62, 64-65, and in doing so made "contact" with Killackey. Id. at 64.

During this time, another court officer and the captain arrived. Id. at 65-67. Posr argued with the officers, asserting that it was "legal" for him to go into the courtroom with the camera. Id. at 69. One of the officers advised Posr that he could check the camera in the courthouse lobby and that then he would be allowed to enter the courtroom and view the proceedings. Id. at 70. Posr continued to try to "squeeze" past Killackey another "three, four" times. Id. at 71, 73. The three officers thereupon removed Posr from the entrance of the courtroom by holding onto him and escorting him to an elevator and then outside of the courthouse. Id. at 67, 73, 75-76. Once Posr was outside the courthouse, he was released. Id. at 77.

While in front of the courthouse, Posr tried to regain entry to the courthouse using one of the doors but was blocked by the captain. Id. at 78. For about "two minutes" Posr attempted to reenter the courthouse and in doing so came so close to the captain that the captain had to physically prevent Posr from colliding with him. Id. at 78-81. Posr leaned into the captain who grabbed Posr by the arms and held him up, away from him, for about "five seconds." Id. at 80. At this point, Posr was arrested. Id.

Posr was given a ticket citing him for disorderly conduct under New York Penal Law ("NYPL") §§ 240.20(1) and (5). Posr's Dep. at 91; Criminal Court Complaint, dated August 5, 1998 ("Exhibit E") (attached as Exhibit E to Barbour's Decl.), at 1; Affidavit of William Beesch, dated April 10, 2003 ("Beesch Aff.") (attached to Barbour's Decl.), at ¶ 5. The charge was amended later to add harassment under NYPL § 240.26(1). Posr's Dep. at 103; Exhibit E at 1; Beesch Aff. at ¶ 6.

On October 28, 1999, all of the charges against Posr were dropped on speedy trial grounds. Posr's Dep. at 104; Beesch Aff. at ¶ 8.

B. Procedural History

As a result of the May 11, 1998 incident, Posr filed a complaint against Killackey alleging that Killackey violated Posr's state and federal rights. The complaint set out the following 13 separate causes of action against Killackey:

1) Sherman Act, 15 U.S.C. § 1, 2 (which appears under the heading "First Amendment");
2) Article I, § 9, New York Constitution;

3) First Amendment, United States Constitution;

4) Article I, § 8, New York Constitution;

5) Fourth Amendment, United States Constitution (based on the seizure at the courthouse and Posr's expulsion);
6) Article I, § 6, New York Constitution (based on the seizure at the courthouse and Posr's expulsion);
7) New York Civil Rights Law § 12;
8) Fourth Amendment, United States Constitution (based on the arrest for entering the courthouse with a camera);
9) Article I, § 6, New York Constitution (based on the arrest for entering the courthouse with a camera);
10) malicious prosecution "under the federal statutes";
11) malicious prosecution "under the statutes of the State of New York";
12) New York Civil Rights Law § 50; and,
13) Donnelly Act, New York General Business Law § 340.
See Complaint Affidavit, dated December 25, 2000 ("Complaint"), at 3-5.

On November 16, 2001, Killackey moved for judgment dismissing in part Posr's complaint pursuant to Fed.R.Civ.P. 12(c). This Court granted Killackey's motion as to claims 1, 2, 3, 4, 7, 12, and 13. See Memorandum Order Adopting Report and Recommendation, filed August 30, 2002; Report and Recommendation, dated May 30, 2002 ("R&R"), at 18. Additionally, the Court dismissed claims 5, 8 and 10 against Killackey in his official capacity only. R&R at 18.

Killackey now moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the unlawful seizure claims (claims 5 and 6), the false arrest claims (claims 8 and 9) and the ...


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