United States District Court, S.D. New York
March 17, 2004.
BARRY LEEVALLEN, Plaintiff, against MADELYN CONNELLY, RICHARD MORALES, and LAWRENCE SMITH, Defendants
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
Plaintiff, then proceeding pro se, filed a complaint under
42 U.S.C. § 1983 ("section 1983") alleging, inter alia, that defendants
made false statements that caused him to be arrested unlawfully and
recommitted to a mental institution. The Honorable Thomas P. Griesa
dismissed the Complaint in its entirety on September 23, 1999, for
failure to state a claim on which relief may be granted, citing Heck v.
Humphrey, 512 U.S. 477, 489 (1994). The district court found that because
plaintiff had not alleged that his prosecution terminated in his favor
(i.e., that he was not recommitted) he could not maintain claims for
false arrest, false imprisonment and malicious prosecution. Plaintiff
challenged only the dismissal of his false arrest claim on appeal. The
Second Circuit vacated the dismissal and remanded the case noting that
Heck v. Humphrey applies to malicious prosecution
cases but not to false arrest claims because under New York law "the
termination of the proceedings in favor of the accused is not an element
of a claim for false arrest." Vallen v. Connelly, No. 99-0326, 2002 WL
1291023, at *2 (2d Cir. June 10, 2002) (unpublished). Nonetheless, the
court noted that in the criminal context a valid conviction establishes
probable cause in support of the arrest, thereby defeating a claim of
false arrest. The Circuit specifically left open the question of whether
this rule that a conviction forecloses a false arrest claim applies
in the context of involuntary commitment. See id. The appellate court
left it to the district court "in the first instance to address these
matters, along with such others as may be appropriate. . . . " Id.
In September of 2002, plaintiff obtained the representation of pro bono
counsel. Thereafter, at the close of discovery, defendants moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56(c).*fn1
For the following reasons, defendants' motion is granted and this case is
A. The Parties
Plaintiff Barry Lee Vallen is an insanity acquittee who currently
resides at Mid-Hudson Psychiatric Center. See Def 56.1 ¶ 1. Defendant
Madelyn Connelly is a certified social worker who, at all times
relevant, was the Director of Social Work Services and Chairperson of the
Forensic Committee at Rockland Psychiatric Center ("Rockland"), a
facility of the New York State Office of Mental Health ("OMH"). See id.
¶¶ 3-4. Defendant Richard P. Miraglia, sued incorrectly herein as "Richard
Morales," is also a certified social worker and was the Assistant
Director of the Bureau of Forensic Services of OMH. See id. ¶¶ 5-6.
Defendant Lawrence E. Smith, also a certified social worker, was the
Supervising Social Worker and Director of Community Services for the
Sullivan County Department of Community Services. See id. ¶ 7.
B. Plaintiff's Psychiatric History
In the early hours of October 5, 1984, Vallen bludgeoned his parents to
death while they slept in their bed. Vallen was charged with two counts
of Murder in the Second Degree but was found not responsible by reason of
disease or defect. See id. ¶ 8, 13. On March 21, 1986, Vallen was found
to have a "dangerous mental disorder" as defined in New York Criminal
Procedure Law ("CPL") § 330.20(1), and was committed to a secure
psychiatric facility, where he remained until December of 1998. See id.
¶ 16. On December 15, 1998, Vallen was found not to have a "dangerous
mental disorder" although he was still "mentally ill," as defined in CPL
§ 330.20(1)(d). See id. ¶ 18. As a result, he was transferred to Pilgrim
State Psychiatric Center ("Pilgrim State"), a non-secure facility under
the jurisdiction of OMH. See id.
On December 5, 1991, Vallen was found to no longer be "mentally ill"
and was therefore conditionally released from Pilgrim State into the
community. See id. ¶ 20. In connection with his release, an "Order of
Conditions" was issued. See id. at ¶ 21. The Order of Conditions, which
remains in effect for five years, specifies the conditions a patient must
comply with in order to remain at liberty. See id. ¶¶ 22-23. The Order of
Conditions included the following directives:
2. The defendant, Barry Vallen, will attend the
Sunrise Psychiatric Clinic, 400 Broadway,
Amityville, New York, or any other clinic
designated by the Commissioner New York State
Office of Mental Health or his designee.
3. The defendant, Barry Vallen, shall comply with any
and all treatment programs, including medications
prescribed initially by his Pilgrim Psychiatric
Center treatment team when he is placed on
conditional release and/or to any changes in the
treatment or medication deemed necessary by the
outpatient clinic. The patient shall participate
in a variety of group and individual therapy
programs and activities, vocational and
4. The outpatient clinic treating the patient, Barry
Vallen, is authorized to modify and develop a
treatment plan, including the prescribing of
medication, as is clinically indicated, and is
authorized to modify and change the initial
treatment recommendations of Pilgrim Psychiatric
Center when clinically appropriate and necessary.
5. The patient, Barry Vallen, shall submit to
appropriate laboratory tests to test for levels of
neuroleptic medications and compliance with taking
his medications as prescribed by his physicians.
6. The patient, Barry Vallen, shall refrain from the
consumption of alcoholic beverages and any
unauthorized drugs not prescribed by his
7. The patient, Barry Vallen, shall submit to
random blood and urine screenings administered
for the purpose of detecting unauthorized or
illicit drugs or alcohol consumption.
* * *
12. If the patient, Barry Vallen, fails to comply with
the treatment and/or the conditions of this
order, or if his conditions should decompensate,
treating the patient and/or the Commissioner New
York State Office of Mental Health shall
immediately notify this Court, the Orange County
District Attorney's office, Mental Hygiene Legal
Service and the Attorney General's office . . .
Order of Conditions, Declaration of Assistant Attorney General Anne
Bomser in Support of State Defendants' Motion for Summary Judgment
("Bomser Decl."), at 45-48.
While living in a state-owned community residence on the grounds of
Pilgrim State, Vallen became noncompliant with the terms of the Order of
Conditions. Consequently, on August 15, 1992, Vallen was civilly
committed to Pilgrim State upon the certification of two physicians that
he was in need of involuntary care and treatment in a psychiatric
hospital. See Def. 56.1 ¶ 28. An application was made by the
Commissioner of OMH ("Commissioner") to recommit Vallen pursuant to CPL
§ 330.20(14). On October 9, 2002, Vallen was transferred from Pilgrim
State to Kirby Forensic Psychiatric Center ("Kirby"), a secure facility,
for a psychiatric evaluation in connection with the recommitment
application. See id. ¶ 29. The Commissioner subsequently withdrew the
recommitment application and, on April 2, 1993, Vallen was transferred
from Kirby to Rockland, a non-secure psychiatric facility. See id. ¶
In January of 1994, Vallen was released from Rockland to once again
live in the community. See id. ¶ 31, The Order of Conditions issued in
1991 remained in effect. See id. ¶ 33. Vallen was to receive outpatient
services through the Sullivan County Department of Community Services
("DCS"). See id. ¶ 32. Clinicians at Rockland were to monitor Vallen's
compliance with the Order of Conditions. See id. With Rockland's
approval, Vallen took up residence in an apartment in Monticello, New
York. He lived there until he was re-arrested on September 15, 1994,
pursuant to New York Mental Hygiene Law ("MHL") § 9.45.
C. Plaintiff's Deteriorating Mental Condition
Defendants claim that after his release from Rockland in January 1994,
Vallen became noncompliant with the Order of Conditions. See Def. 56.1
¶ 34. Vallen disputes this, citing a July 29, 1994 Progress Note from
Dr. M. Malik, a DCS staff psychiatrist. In that Note, Dr. Malik stated:
"[Vallen] complains of poor sleep. He's alert, oriented to 3 spheres. He
complains of being depressed. He has no energy or motivation to do
anything. Currently, I don't think he's dangerous to himself or others. I
believe he's compliant with his medications." 7/29/94 Progress Note, Ex.
D to the Affidavit of Arthur S. Linker, plaintiff's attorney, in
Opposition to Defendants' Motions for Summary Judgment ("Linker
Aff."). As further support of his compliance, Vallen submitted three lab
reports indicating that he tested negative for illicit substances in
February, May and August of 1994. See Ex. G to the Linker Aff.
Because Vallen's case was perceived as problematic, a "Utilization
Review Committee Meeting" was held on August 1, 1994, attended by Smith,
Vallen's social workers, and other mental health providers from Sullivan
County. See Def. 56.1 ¶ 35. During that meeting, it was noted that
Vallen "is not doing well and has been very resistent [sic] to
cooperating with treatment." Utilization Review Committee Meeting Notes,
Bomser Decl. at 63. This meeting led to a Case Conference held on August
4, 1994. See Def. 56.1 ¶ 39. In attendance were Smith and Connelly, Ross
Keister and Ron Wechsler, Vallen's social workers, and other mental
health providers from Sullivan County. See id. ¶ 36. The following
concerns were raised:
Barry has obtained prescriptions from his medical
doctor, Dr. Knealy. This medication is unaccounted
for. Barry is not following a budget and has not
yet paid his rent. He has a sense of entitlement
and does not want to spend the money he makes
driving a cab on his bills, feeling that it is his
own money. He has not followed through with any
VESID recommendations. He, in general, is not
cooperating with his treatment.
Case Conference Note, Bomser Decl. at 64. Whether to re-hospitalize
discussed but the final consensus was to give him one more chance
in the community. See id. It was decided that a meeting would be
scheduled with Vallen to discuss these issues and that a letter would be
sent to him describing his noncompliance with his treatment plan and the
possible consequences. See id.
On August 8, 1994, Dr. Muzaffar Khan, Rockland's Acting Clinical
Director, sent Vallen a letter describing the concerns raised at the
recent Case Conference including Vallen's overall attitude of
irritability and hostility in dealing with service providers and his
procurement of duplicate prescriptions. See Def. 56.1 ¶ 42; 8/8/94 Letter
from Dr. Khan to Vallen ("Khan Ltr."), Bomser Decl. at 65-66. Dr. Khan
informed Vallen that "failure to exhibit substantial cooperation in
compliance with the Order of Conditions may necessitate a revocation of
your conditional release." Khan Ltr. at 1, Bomser Decl. at 65.
On August 13, 1994, Dr. Michael McGuire, a consulting psychiatrist with
DCS who last examined Vallen on July 5, 1994, reported that, to the best
of his knowledge, Vallen had been compliant with his medication. See
8/13/94 Progress Note, Ex. I to the Linker Aff. Dr. McGuire also reported
that Vallen "has not expressed any suicidal or homicidal ideation in the
past 6 months" and "has shown no overt destructive behavior or suicide
attempts in the past 6 months." Id. On August 26, 1994, Dr. Malik saw
Vallen for medication therapy. See 8/26/94
Observation Note, Ex. J to the Linker Aff. According to Dr. Malik, Vallen
was not willing to take his medication despite being depressed, anxious
and worried. See id. Dr. Malik noted that Vallen "denies any suicidal or
homicidal ideation to hurt himself or others" and has "no delusional
thinking." Id. Dr. Malik assessed Vallen's condition as fair. See id.
On September 7, 1994, Stephen N. Lawrence, Rockland's Chief Executive
Officer, sent Miraglia a physician's affidavit supporting the Office of
Mental Health's application for the recommitment of Barry Vallen. See
Def. 56.1 ¶ 43. The affidavit was completed by Dr. Yar Mohammad, a
psychiatrist and Rockland's Medical Director. See Mohammad Affidavit,
Bomser Decl. at 71. In that affidavit, Dr. Mohammad stated that in his
opinion, based on information and belief, Vallen "may be suffering from a
dangerous mental disorder." Id. at 72. Dr. Mohammad based his opinion on
Vallen's history of inpatient psychiatric care as well as: Vallen's
refusal to cooperate with his Intensive Case Manager and accept Intensive
Case Management Services from Sullivan County; Vallen's refusal to attend
his drug and alcohol program; a mental status report describing the
agitation and anger Vallen directed at his service providers; duplication
of medication from outside doctors; and self reports of sleeping
difficulties. See id.
DCS conducted a Case Review on September 13, 1994 to discuss Vallen's
case. See 9/15/94 Minutes of Case Conference, Ex. H to the Linker Aff. In
attendance were Smith, Ross Keister, Ron Wechsler, counselors from the
Alcohol & Drug Abuse Services clinic and Rehabilitation Support
Services, and an attorney from Mental Health Legal Services. See id.
During that conference, the following issues were discussed: Vallen's
procurement of additional psychotropic medications from an outside doctor;
Vallen's refusal to attend substance abuse services since August 1994;
Vallen's unwillingness to be involved with Intensive Case Management
services since August 1994; and Vallen's refusal to provide documentation
needed to establish a budget of his income and expenses. See id. The
consensus reached was that Vallen should meet with treatment and service
providers on September 20, 1994, in an attempt to convince Vallen of the
need to be re-engaged in all services deemed necessary and appropriate by
his treatment team. See id.
D. Plaintiff's Arrest and Subsequent Retention Hearing
On September 14, 1994, the Sullivan County Sheriff's Department
received an anonymous phone call in which the caller referred to a "Barry
Vallone" who lived in the Sackett Lake area (where Vallen lived).
See Ex. A to the 8/25/03 Affidavit of then Sergeant Gary Barsky.
The caller then stated that
Vallen "is supposed to be committed to [a] mental institution in [the]
near future and supposedly has a gun and will not go willingly." Id. On
September 15, 1994, the Sullivan County Sheriff's Department contacted
Frank Brusinski, an OMH clinician familiar with Vallen's case, and told
him about the anonymous call. See id. Brusinski suspected that Vallen was
the anonymous caller. See id. That same day, Brusinski contacted Smith
who, in turn, contacted Connelly to discuss the anonymous call. See Def.
56.1 ¶¶ 51, 55. During their conversation, Connelly informed Smith that it
was the tenth anniversary of the murder of Vallen's parents, and that
anniversary dates can cause patients stress and lead to more symptoms.
See id. ¶¶ 56-57. Following his conversation with Connelly, Smith issued a
Removal Order*fn3 pursuant to MHL section 9.45 directing the police to
take Vallen into custody and transport him to a hospital approved by the
Commissioner. See id. ¶ 64.
In response to the Removal Order issued by Smith, New York State
troopers were dispatched to Vallen's residence to take him into custody.
See id. ¶ 66. At 6:15 p.m. on September 15, 1994, two State Troopers
entered Vallen's apartment in Monticello, New York. See id. ¶ 67.
Although Vallen denies ever having possessed any guns, the police report
indicates that he was found with a
loaded pistol lying on his bed and a loaded shotgun propped against the
wall near his bed, both of which were secured by the troopers. See New
York State Police Investigation Report, Bomser Decl. at 84. Moreover, an
arrest warrant was issued on September 21, 1994, charging Vallen with
Criminal Possession of a Weapon in the Third Degree. See Def. 56.1 ¶
71. Vallen was eventually transported to Rockland. See id. ¶ 68.
A hearing on the Commissioner's application for a recommitment order
under CPL § 330.20 was held on September 26, 1994, before the Honorable
Alfred J. Weiner of the New York State Supreme Court, Rockland County.
See id. ¶ 73. The following people testified at the hearing: Ronald
Wechsler, Vallen's social worker; Dr. Ki-Soon Hahn, a psychiatrist who
diagnosed Vallen upon his admission to Rockland; and Michael Hennigan, one
of the State Troopers who arrested Vallen. See id. ¶ 16. Vallen was
present at the hearing and was represented by an attorney from the Mental
Hygiene Legal Service. See id. ¶ 75.
When asked whether Vallen violated any of the conditions included in
his Order of Conditions, Wechsler testified as follows:
Q: Okay. Specifically how did he violate them?
A: Well, in section 3 of the order of conditions where
it says he shall comply with any and all treatment
programs, we had put several treatment programs in
place, one of them was continued treatment at the
Sullivan County Alcohol and Drug Addiction Services
which Barry did comply with initially, the
psychoeducational component, he completed, but he
resisted continuing treatment until positive
Also with his treatment with intensive case
management, a rift occurred between Barry and his
intensive case manager and after a while Barry also
became resistant to continuing his treatment
there. Recommendations were made that he submit a
budget for his, you know, to show the out go of his
income and so on and so forth, to help him keep
track of his money and he resisted doing that. He
also had obtained unauthorized medications from
another physician which was in clear violation of
9/26/94 Hearing Transcript ("Tr.") at 8-9. Dr. Hahn testified that her
diagnosis of Vallen was schizophrenia paranoid chronic. See id. at 19.
Dr. Hahn further testified that Vallen admitted that he had a gun but
that it was for duck hunting. See id. at 22. When asked whether Vallen
has a dangerous mental disorder requiring inpatient hospitalization in a
secure facility, Dr. Hahn answered in the affirmative, explaining:
The man with this type of violent behavior in the
past, . . . such . . . poor judgment with having a
gun at home, and not complying with the medication
schedule for outpatient, and not cooperating with
outpatient program, and this is very often the
sign to become deteriorating, where there's a
mental condition. Since I saw him last year too I
compare his condition last year and this year, I see
quite clearly that his condition deteriorated compared
to his condition a year ago. Myself, I was seriously
doubting about the way he was really complying with
the medication as an outpatient. . . . I don't think
his paranoid condition has completely cleared up yet.
Id. at 22-23. State Trooper Michael Hennigan testified that he
recovered a shotgun and a black powder pistol from Vallen's apartment and
that the shotgun was operative and loaded. See id. at 29.
On September 28, 1994, Judge Weiner issued a Recommitment Order
committing Vallen to a secure psychiatric facility for a six-month
period. See Def. 56.1 ¶ 82. In connection with that Recommitment Order,
the court found
[t]hat the respondent has a dangerous mental disorder
requiring care and treatment. He has been diagnosed as
having schizophrenia, paranoid type. That because of
such condition he constitutes a danger to others and
that when he was arrested prior to being brought to
Rockland Psychiatric Center on September 15, 1994 he
was in possession of firearms.
Tr. at 36. Since September of 1994, Vallen has been continuously
confined to a secure psychiatric facility.
II. LEGAL STANDARD
Summary judgment is permissible "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such
that a jury could return a verdict for the nonmoving party.'" Gayle v.
Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it `might
affect the outcome of the suit under the governing law.'" Id. (quoting
Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that
no genuine issue of material fact exists.*fn4 See Marvel Characters, 310
F.3d at 286 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970)). In turn, to defeat a motion for summary judgment, the non-moving
party must raise a genuine issue of material fact. To do so, he "`must do
more than simply show that there is some metaphysical doubt as to the
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)), and he "`may not rely on conclusory allegations or
unsubstantiated speculation.'" Fujitsu Ltd. v. Federal Express Corp.,
247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998)). "If the evidence presented by the non-moving party
is merely colorable, or is not significantly probative, summary judgment
may be granted." Scotto, 143 F.3d at 114 (internal quotation marks,
citations and alterations omitted). Rather, the non-moving party must
produce admissible evidence that supports his pleadings. See First Nat 7
Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this
regard, "[t]he `mere existence of a scintilla of evidence' supporting the
non-movant's case is also insufficient to defeat summary judgment."
Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252).
A. MHL § 9.45 and the Fourth Amendment
Under New York law, the director of community services has the power to
direct the removal of any person, within his or her jurisdiction, to a
hospital approved by the Commissioner to accept emergency admissions for
immediate observation, care and treatment if:
a licensed psychologist, registered professional nurse
or certified social worker currently responsible for
providing treatment services to the person, a licensed
physician, health officer, peace officer or police
officer reports to him that such person has a mental
illness for which immediate care and treatment in a
hospital is appropriate and which is likely to result
in serious harm to himself of herself or others.
MHL § 9.45 (emphasis added). The phrase "likely to result in serious
harm" is statutorily defined to mean: "(a) a substantial risk of physical
harm to the person as manifested by threats of or attempts at suicide or
serious bodily harm or other conduct demonstrating that the person is
dangerous to himself or herself, or (b) a substantial risk of physical
harm to other persons as manifested by homicidal or other violent
behavior by which others are placed in reasonable fear of serious
physical harm." MHL § 9.01; see also MHL § 9.39(a).
It is well-established that "involuntary civil commitment is a `massive
curtailment of liberty' and it therefore cannot permissibly be
accomplished without due process of law." Rodriguez v. City of New York,
72 F.3d 1051, 1061 (2d Cir. 1995) (quoting Vitek v. Jones, 445 U.S. 480,
491 (1980)). Accordingly, the Fourth Amendment requires an official to
have probable cause to believe that a person is dangerous to himself or
others before he can seize and detain such person for a psychiatric
evaluation. See Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.
1993) ("The Crisis Team took [plaintiff] to the hospital against
his will, and he was involuntarily confined there pursuant to state law.
This infringement of his liberty was tantamount to the infringement of
being arrested. That his seizure occurred in the civil context does not
render the Fourth Amendment inapplicable.") (citations omitted).
If a dangerous mental condition is analogized to the
role of criminal activity in traditional Fourth
Amendment analysis, a showing of probable cause in the
mental health seizure context requires only a
"probability or substantial chance" of dangerous
behavior, not an actual showing of such behavior. See
Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983). Just
as actual innocence will not render an arrest invalid
if it is based on then-existing probable cause that
criminal activity is occurring, see Criss v. City of
Kent, 867 F.2d 259, 262 (6th Cir. 1988), a mental
health seizure can rest upon probable cause even when
the person seized does not actually suffer from a
dangerous mental condition. Because "probable cause is
a fluid concept-turning on the assessment of
probabilities in particular factual contexts," Gates,
462 U.S. at 232, courts evaluate the existence of
probable cause from the perspective of a reasonable
and objective person in the position of the seizing
official. See Criss, 867 F.2d at 262-63.
Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997) (parallel
B. False Arrest
A section 1983 claim for false arrest incorporates the elements of a
false arrest claim under New York law. See Boyd v. City of New York,
336 F.3d 72, 75 (2d Cir. 2003). Under New York law, the elements of a
false arrest claim are: "`(1) the defendant intended to confine [the
plaintiff], (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the confinement was
not otherwise privileged."' Singer v. Fulton County Sheriff, 63 F.3d 110,
118 (2d Cir. 1995) (quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)
(alteration in original)). A favorable termination of the proceedings is
not an element of a false arrest claim.*fn5 See Singer, 63 F.3d at 118.
Accordingly, Vallen's false arrest claim turns on whether there was
probable cause to issue the Removal Order.
Defendants Connelly and Miraglia are certified social workers who were
responsible for providing treatment services to Vallen. Both were aware
Vallen's history of mental illness and violence, his noncompliance
with his Order of Conditions, both in 1992 and 1994, and the anonymous
telephone call stating that Vallen had a gun and would not return to the
hospital voluntarily. This information was sufficient to support their
belief that Vallen had a mental illness which was likely to result in
serious harm to himself or others. Thus, any communications made by
Connelly and Miraglia to Smith advising him to issue a Removal Order were
supported by sufficient probable cause of Vallen's dangerousness.
Smith's issuance of the Removal Order was also supported by probable
cause. Smith testified that he issued the Removal Order based on the
anonymous call to the Sheriff's Department combined with Vallen's history
of past violence, his noncompliance with his Order of Conditions, and the
accumulation of clinical evidence pointing to Vallen's psychiatric
decompensation. See 5/14/03 Deposition of Lawrence Edward Smith at 109,
128, Bomser Decl. at 37-38. Unlike the police officers in Kerman v. City
of New York, 261 F.3d 229, 235 (2d Cir. 2001), who did not dispute that
an anonymous 911 call was the sole basis for their conclusion that
exigent circumstances justified a forced entry into plaintiff's
apartment, here the anonymous call was cumulative to other evidence of
Vallen's noncompliance. Therefore, the holding in Kerman that the
officers' warrantless entry into plaintiff's apartment violated the
Fourth Amendment given the officers' failure to corroborate the 911 call
and the protections afforded to private dwellings is inapposite.
Where there is a totality of circumstances pointing to a "probability
or substantial chance of dangerous behavior, not [even] an actual showing
of such behavior," courts have not hesitated in upholding emergency
pick-up orders. For example, in Hoffman v. County of Delaware,
41 F. Supp.2d 195, 209 (N.D.N.Y. 1999), aff'd, 205 F.3d 1323 (2d Cir.
2000), Hoffman, who was a police officer, claimed that Dr. Talarico, the
psychiatrist who signed the emergency pick-up order that led to Hoffman's
arrest and subsequent admission to a mental hospital, relied on false and
misleading information in doing so. The court rejected this claim, based
on the following reasoning:
Talarico. spoke to both [part-time Deputy Sheriff]
Hamilton and [Police Officer] Blot who stated that
Hoffman was known to harbor ill feelings towards
several former and current Village officials; he blamed
many of his problems on an alleged conspiracy by these
individuals to cover up illegal drug activity in the
Village; he believed the former police commissioner
attempted to break into his apartment to steal and/or
plant evidence; he appeared to be paranoid; he
threatened violence towards certain city officials; he
did not deny making the threatening comments upon
subsequent investigation; he was known to have a large
collection of firearms and other weapons; he was
thought to abuse alcohol; and he was believed to have
his apartment as protection from an attack. Based upon
all this information, Talarico concluded that Hoffman
exhibited unreasonable delusions of persecution, that
he was "seriously angry," and has "increasing tension
[with] his employer." Accordingly, Talarico. concluded
that Hoffman needed "a serious evaluation for
dangerousness" and signed a 9.45 pick-up order. This
information, as known to Talarico. at the time, was
objectively sufficient to establish a substantial
likelihood of dangerous behavior that was likely to
result in harm to others.
41 F. Supp.2d at 209-10. See also Higgins v. City of Oneonta,
617 N.Y.S.2d 566, 569 (3d Dep't 1994) ("Given [the police officers']
knowledge of plaintiff's longstanding hostility toward certain members of
the Police Department and City officials, coupled with [his treating
psychiatrist's] opinion that plaintiff was dangerous and the obvious
threatening nature of plaintiff's phone calls, there is sufficient
evidence to find as a matter of law that defendants are entitled to the
privilege afforded them by Mental Hygiene Law former § 9.41."); cf.
Richardson v. Nassau County Med. Ctr., 840 F. Supp. 219, 221-22
(E.D.N.Y. 1994) (holding that doctors who involuntarily commited
plaintiff for fifteen-day period pursuant to MHL § 9.39 did not violate
plaintiff's constitutional rights where plaintiff was carrying knives "for
his own protection" and was found to be "delusional, paranoid and
potentially violent" as well as "dangerous.").
In sum, there was sufficient evidence that Vallen's mental state had
deteriorated to the point where he posed a danger to himself or others at
the time Smith issued the Removal Order based, in part, upon his
conversations with Connelly and Miraglia. That evidence did not consist
solely of the anonymous telephone call but was a combination of Vallen's
past history of mental illness and violence, his noncompliance with his
Order of Conditions, and the clinical evidence pointing to his
decompensation. Accordingly, because all three defendants acted with
probable cause, Vallen's false arrest claim must be dismissed.
C. Qualified Immunity
"Qualified immunity protects government officials from the `costs of
trial' and `broad reaching discovery' by shielding them from liability
`insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.'"
Glass, 984 F.2d at 57 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982)). "[W]hether an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official action
generally turns on the `objective legal reasonableness' of the action .
. . assessed in light of the legal rules that were `clearly established'
at the time it was taken." Anderson v, Creighton,
483 U.S. 635, 639 (1987) (quoting Harlow, 457 U.S. at 818-19). As
explained by the Second Circuit,
[e]ven where the plaintiff's federal rights and the
scope of the official's permissible conduct are
clearly established, the qualified immunity defense
protects a government actor if it was `objectively
reasonable' for him to believe that his actions were
lawful at the time of the challenged act.
Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003) (internal
quotation marks and citations omitted, alteration in original). See also
Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996) ("[P]ublic officials are
entitled to qualified immunity if (1) their conduct does not violate
clearly established constitutional rights, or (2) it was objectively
reasonable for them to believe their acts did not violate those
Here, even if defendants' actions were not supported by probable
cause, they were objectively reasonable under the circumstances. On the
basis of the anonymous call alone, defendants could have legitimately
issued a Removal Order.*fn6 See Kerman, 261 F.3d at 237 ("We find that
at the time of the officers'
conduct in this case [October 20, 1995] no clearly established law
prohibited a warrantless entry into an apartment on the ground of exigent
circumstances based solely on an anonymous 911 call."). If the police
officers' actions in Kerman were found to have been objectively
reasonable, so too were the actions of these defendants in initiating
plaintiff's arrest in September of 1994, even if solely in response to the
anonymous call. But as already noted, there was substantially more
evidence than just the anonymous call. In light of the total information
possessed by defendants, it was objectively reasonable for defendants to
believe that Vallen was dangerous. See Glass, 984 F.2d at 57 ("We agree
with Judge Platt that the defendants' actions were objectively
reasonable. Glass was hospitalized following two reports that he was
threatening an individual with a gun and observations of strange
behavior. Furthermore, his demeanor was variously described by those who
examined him as hosfile, guarded, angry, suspicious, uncooperative, and
paranoid. Finally, he had an extensive psychiatric history, which included
a history of violent behavior, multiple instances of hospitalization for
psychiatric care, and a family history of mental illness.").
Accordingly, defendants are entitled to qualified immunity which is an
alternative basis on which to dismiss plaintiff's false arrest claim.
For the foregoing reasons, summary judgment is granted in defendants'
favor and plaintiff's Complaint is dismissed with prejudice. The Clerk of
the Court is directed to close this case.