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United States District Court, S.D. New York

March 17, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


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 Page 2 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 Vallen v. Connelly, No. 99-0326, 2002 WL 1291023, at *2 (2d Cir. June 10, 2002) (unpublished).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 dismissed. Page 3

 I. FACTS*fn2

  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 mental Page 4 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. Page 5


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 rehabilitative.
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 physician.
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, the clinic Page 6 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. ¶ 30. Page 7

  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 Page 8 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 Vallen was Page 9 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 Page 10 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. Page 11 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 Page 12 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 Page 13 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 Page 14 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 discharge.


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 the recommendations.
  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 can Page 15 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.


  Summary judgment is permissible "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if Page 16 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 material facts,"' Page 17 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: Page 18


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. Page 19 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 citations omitted). Page 20

  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 of Page 21 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 Page 22 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 sandbagged Page 23 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."). Page 24

  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, Page 25 483 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 rights.").

  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' Page 26 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."). Page 27

  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.


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