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April 14, 2004.


The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Ronald Lipton brought this action pursuant to 42 U.S.C. § 1983 against defendants the County of Orange (the "County"), a municipal corporation, and H. Frank Bigger, Thomas Madden and Antoinette Catletti as administratrix of the Estate of Theodore Catletti (collectively the "individual defendants") in their individual and official capacities.*fn1 (Complt. ¶¶ 8-9.) At all times relevant to the events on which this action is based, the individual defendants occupied the following positions with the County: (1) Bigger was the County's elected Sheriff; (2) Theodore Catletti was the County's corrections administrator, holding the rank of Colonel within the Sheriff's department; and (3) Madden was the assistant corrections administrator, holding the rank of Major within the Sheriff's department. (Id. ¶¶ 3, 5-6.) Plaintiff seeks compensatory damages from the County and compensatory and punitive damages from the individual defendants, claiming that defendants' actions with respect to his pretrial detention and release therefrom constituted a violation of his free speech, due process and equal protection rights secured by the First and Fourteenth Amendments to the United States Constitution.*fn2 (Id. ¶¶ 7, 29.) Specifically, plaintiff contends that defendants retaliated against him for his public criticism of police misconduct by causing or acquiescing in maltreatment by Sheriff's deputies who: (1) kept him in an unheated holding cell while he was wearing only thin jail-issue clothing; (2) deprived him of food and drink except for one sandwich and water given to him on the night he entered defendants' custody, (3) arbitrarily and capriciously changed his inmate classification and transferred him to the correctional facility on Riker's Island in New York City ("Riker's"), where Sheriff's deputies falsely informed the staff that he was a pedophile; (4) physically abused him while they transported him back to the jail from Riker's; (5) subjected him to an unjustified strip search prior to his release pursuant to an unconstitutional policy of strip searching all pretrial detainees; and (6) released him into cold weather with no jacket or money and refused him access to shelter or a telephone to call for help. (Id. ¶¶ l3, 14, 17, 20-24.)

Defendants now move for summary judgment pursuant to FED. R. CIV. P. 56 dismissing plaintiff's Complaint in its entirety, arguing that: (1) the claimed misconduct was de minimis and thus not of a level necessary to support constitutional claims; (2) with respect to the County and the individual defendants in their official capacities, plaintiff has failed to prove that the alleged deprivations were pursuant to a County custom or policy; (3) plaintiff's claims fail to state an equal protection violation; and (4) the individual defendants were not personally involved in the alleged deprivations, and in any event would be entitled to qualified immunity for their actions. (Def. County Mem. Supp. Summ. J. at 12-21, 23-33, 37-38; Defs. Catletti & Madden Mem. Supp. Summ. J. at 6-13; Def. Bigger Mem. Supp. Summ. J. at 4-17.) The County also argues that plaintiff's damages should be limited to nominal or punitive damages because he has failed to make the showing of physical injury required by the Prison Litigation Reform Act (the "PLRA"), 42 U.S.C. § 1997e(e). (Def. County Mem. Supp. Summ. J. at 34-36.) For the reasons set forth herein, we grant defendants' motion for summary judgment dismissing all claims contained in the Complaint, except for the retaliatory transfer claim. We deny the County's motion for summary judgment on the retaliatory transfer claim. We dismiss as redundant the retaliatory transfer claim against the individual defendants in their official capacities. We grant the motions for summary judgment of individual defendants Bigger and Madden dismissing the retaliatory transfer claim against them in their personal capacities. We deny the motion of defendant Catletti dismissing the retaliatory transfer claim against him in his personal capacity. Finally, we conclude that plaintiff may recover compensatory, nominal and/or punitive damages on the retaliatory transfer claim from defendant Catletti, and nominal and compensatory damages from the County.


  The record and the parties' submissions reveal the following facts.*fn3 Plaintiff is a 57 year-old resident of Newburgh, New York, a city that is located within the County. (Def. County Mem. Supp. Summ. J. at 2.) Plaintiff is currently employed as apart-time college boxing instructor,*fn4 but worked for various law enforcement agencies in New York and New Jersey as a police officer and prosecutor's investigator from 1968 until 1987. (Id.; Lipton 7/23/03 Dep. at 35-51, 73.) Plaintiff has long been publicly critical, in the media and the courts, of the actions of numerous law enforcement agencies in the County and surrounding areas. (Complt. ¶ 10.)

  One such example of plaintiff's public criticism of local law enforcement was his lawsuit against the Walden Police Department ("Walden"), a village police department located in the County that had employed him for six months in 1986-1987. (Lipton 7/23/03 Dep. at 63-64.) Plaintiff, a Jewish man, left Walden because he discovered that another officer had drawn swastikas on plaintiffs ticket book and because he did not want to continue covering for the sheriff while the sheriff was having extramarital relations. (Id. at 64, 66-67.) Plaintiff stated that the Walden administration retaliated against him for his failure to assist in the sheriff's infidelities by not giving him work, and by not providing him with assistance in the field when he called for it. (Id. at 67-68.) In 1996, plaintiff brought a federal lawsuit against the village of Walden and its police department alleging police misconduct, harassment and anti-Semitism, which suit was resolved by a confidential settlement. (Id. at 97-98.) Plaintiff has brought numerous other actions against local entities that include pending suits against the Woodstock Police Department, another former employer, for false arrest and malicious prosecution, and the owner of the City of Newburgh's website for publication of allegedly defamatory statements. (Id. at 97, 99-100, 130.)

  In August 1996, plaintiff complained about the hiring practices of the Village of Montgomery Police Department to a reporter who incorporated the complaints in an article published in the Middletown Times-Herald. (Complt. ¶ 10.) The article discussed members of that police department who had also worked for the County Sheriff s department, and criticized a Montgomery practice that allegedly required its police officers to work for a private security company owned by Jack Bymes, a Montgomery officer and Major in the County Sheriff's department. (Id.; see also Lipton 7/23/03 Dep. at 137-39.) Plaintiff learned of this requirement during a meeting with Byrnes prior to applying for a Montgomery police position, and testified at his deposition that he had informed Byrnes of his objection to that requirement as illegal. (Id. at 140.)

  Thereafter, in November 1996, Larry Catletti, who is the son of defendant Catletti, a deputy in the County Sheriff's department and a part-time police officer for the Village of Montgomery, stopped plaintiff for speeding on Route 17-K in the Town of Montgomery. (Complt. ¶ 11; Lipton 7/23/03 Dep. at 143-46.) This traffic stop occurred shortly before plaintiff was to testify in his federal lawsuit against the Village of Walden. (Lipton 7/23/03 Dep. at 147-48.) Plaintiff testified that he asked Larry Catletti why he had been stopped, and Catletti answered that it was "for testifying against my Mends, asshole." (Id.; see also Lipton 7/25/03 Dep. at 11.) When plaintiff realized who Larry Catletti was, he said "[y]our father works for a jail, " to which Catletti replied that plaintiff "better never wind up there." (Lipton 7/23/03 Dep. at 148.) Larry Catletti then issued plaintiff a speeding ticket, and left the speed box blank. (Id.) The Montgomery Village Court subsequently dismissed the speeding ticket. (Id. at 150.)

  Shortly thereafter, plaintiff both sent a letter to and called defendant Bigger expressing his concerns about the ticket and what Larry Catletti had said to him about what would happen if plaintiff came to the County jail.*fn5 (Id. at 161.) Bigger stated that he would talk to Larry Catletti, and mentioned that defendant Ted Catletti was the jail administrator and was in the room with him. (Id. at 162.) Plaintiff also met alone with Bigger in person, and again expressed his concerns. (Id. at 163.) Bigger promised plaintiff that he would check into the allegations. (Id. at 164.) In a subsequent follow-up conversation, Bigger told plaintiff that he thought the ticket was unwarranted, but that there was nothing he could do about it.*fn6 (Id.) Plaintiff followed up again by sending Bigger a written letter in March 1997 reminding him of Catletti's threats; that letter was also sent to the New York State and New York City Departments of Corrections. (Id. at 165-66.) Plaintiff received no further response to that letter. (Id. at 166.)

  Thereafter, on February 14, 1999, plaintiff and his son were arrested in Ulster County on a subsequently dismissed charge of criminal weapons possession*fn7 in the third degree in violation of N.Y. PENAL LAW § 265.02.*fn8 (Matera Aff. ¶ 1.) Pending bail, plaintiff was detained in the Ulster County jail until Ulster County officials transferred him to the custody of defendant County in the evening of February 17, 1999 on new charges of aggravated sexual abuse in the third degree in violation of N.Y. PENAL LAW § 130. 66. (Complt. ¶ l3; Lipton 7/23/03 Dep. at 169-70, 173; Def. County Rule 56. 1 Stat., Ex. M.) Upon their arrival at the County jail, following the initial intake processing, plaintiff and his son were placed in a cold, unheated holding cell for approximately one hour although they were wearing only thin jail-issue garments. (Lipton 7/25/03 Dep. at 54-55, 61.) Plaintiff complained to nearby deputies about the cold, and of numbness in his chest and requested a blanket and medical attention, but was given neither. (Id. at 59, 61-62.) After approximately one hour, Joseph Ryan, a Captain in the Sheriff's department and shift commander for the evening, moved plaintiff and his son to a heated cell and provided them each with a sandwich and drinks.*fn9 (Id. at 73-74; see also Ryan Dep. at 12.) Plaintiff then thanked Ryan for `treating us as human beings." (Lipton 7/25/03 Dep. at 75.)

  The following morning, February 18, 1999, two officers approached the cell occupied by plaintiff and his son. (Id. at 82.) The officers, one of whom is named Kosmogiannis, informed them that plaintiff's son would be placed into the general inmate population,*fn10 and that plaintiff was "`going somewhere else and that's the present from the colonel, from Colonel Catletti.'" (Id. at 83; see also Def. County Mem. Supp. Summ. J. 18.) They told plaintiff that he was being moved "as a present from the colonel for giving his son a hard time." (Lipton 7/25/03 Dep. at 85.) The officers also stated that the "major and the colonel wanted [plaintiff] transferred somewhere else." (Id. at 86.) Plaintiff immediately asked to speak to Bigger, but the officers informed him that Bigger did not want to see him.*fn11 (Id. at 86-87.) Shortly thereafter, an unidentified officer came to the cell and told plaintiff that he was being transferred to Riker's as "`a present from the colonel'" and because `the major and the colonel" want him sent there.*fn12 (Id. at 91-92.) The officer also told plaintiff that his classification had been changed and that "this jail can no longer house someone like you." (Id. at 92.) Later that morning, two Sheriff's deputies, Curtis and Price, transported plaintiff to Riker's. (Id. at 94; see also Lipton 8/5/03 Dep. at 43-44.) Plaintiff had no complaints about the car trip to Riker's. (Lipton 7/25/03 Dep. at 99-100.) It is undisputed that the transfer was made at Catletti's direction and approved by the State of New York.*fn13 (Def. County Rule 56. 1 Stmt. ¶¶ 4-5, 8.)

  Upon their arrival at Riker's, the County deputies transferred plaintiff to the custody of Riker's corrections officers. (Lipton 7/25/03 Dep. at 101.) Plaintiff noticed that the paperwork given to the Riker's officer contained a statement to the effect of "claims to have been a police officer, this is untrue, do not believe him." (Id.) We note that the transfer form submitted to the Court as part of the record states that plaintiff "claims to be retired police officer — information is unfounded." (Def. County Rule 56. 1 Stat, Ex. K.) Plaintiff also claims that he overheard the County officers tell the Riker's officers that he was a pedophile.*fn14 (Upton 7/25/03 Dep. at 102.)

  Plaintiff also testified that the Riker's officers asked the County officers when plaintiffs next court date was, and the County officers replied that there was no court date and plaintiff was to remain at Riker's indefinitely, despite the fact that the County officers had with them a form stating that plaintiff was scheduled for an appearance in the Newburgh Town Court on February 22. (Id.) Plaintiff then asked the Riker's officers to call the Newburgh court, and explained that the County officers were lying when they stated that he was not a former police officer, and was a pedophile. (Id.) After a brief discussion between the Riker's officers, they called the court and learned of plaintiff's scheduled court date. (Id. at 103.) At this point, the County officers ran out of the building, despite the Riker's staff's request for them to stay, and the Riker's officers stated that "`there is something very wrong here.'" (Id. at 103, 106.)

  Plaintiff remained at Riker's until two County officers, Tim Mahoney and John Byman, picked him up on the evening of February 19, 1999. (Complt. ¶ 19; Lipton 8/5/03 Dep. at 5-6.) Plaintiff claims that prior to the car trip, Mahoney asked him, "`[s]o you're the Walden cop, "`to which plaintiff replied in the affirmative. (Lipton 8/5/03 Dep. at 6-7.) Plaintiff testified that Mahoney and Byman physically abused him during the car ride from Riker's to the County jail as Mahoney, the driver, slammed on the brakes hard, repeatedly and without cause, resulting in plaintiff's head and shoulders being slammed into the partition that separated the front and rear seats of the police car, causing him pain.*fn15 (Id. at 11, l3, 16.) Plaintiff testified that Mahoney "slammed on the brakes without any vehicle or traffic necessity about four times" early in the trip. (Id. at 14, 18.) Plaintiff was in handcuffs and ankle restraints during the trip and was not wearing a seat belt.*fn16 (Id. at 14-15.)

  Upon his return to the County Jail, plaintiff learned that bail had been posted for him with the Newburgh Town Court by friends and relatives (Lipton 7/25/03 Dep. at 136, 144, 147) and that he was to be released. (Lipton 8/5/03 Dep. at 21.) Plaintiff then requested the return of his possessions that had been taken from him during the initial jail intake process; he then discovered that some were missing. (Id.) A young Sheriff's deputy then asked plaintiff to step into a corridor area, where he told plaintiff to take off all of his clothes for a strip search.*fn17 (Id. at 21-22.) When plaintiff asked why he was being strip searched, given that he just was in the custody of two deputies who had searched him before putting him the car, the officer stated: "`I hear you tape record cops. You give cops a hard time.'" (Id. at 22.) When plaintiff asked for a superior officer, the officer told plaintiff: "`Take off your clothes or you're never going to get out of the jail.'" (Id.) Plaintiff removed his clothes and bent over at the officer's request, but continued to complain, to which the officer responded: "`That's the way it is at OC Jail. You don't like it, don't come here.'" (Id. at 23-26.) Plaintiff then dressed in pants, a shirt, shoes and socks — his heavy jacket that he had worn at the time of his arrest had not been returned to him by the jail staff. (Id. at 27-28.)

  Plaintiff then began to exit the jail. (Id. at 29.) While on his way out, he asked a Sheriff's employee to permit him to make a phone call to his son to get a ride home; that request was denied. (Id.) Plaintiff then told the employee that he felt weak and sick, it was freezing outside and that he did not have a coat, and that he lacked change or a calling card; he asked the employee to either call plaintiffs son or allow him to wait inside.*fn18 (Id.) The employee responded by telling plaintiff to: "Get the fuck outside" and also denied plaintiffs request to see a supervisor. (Id. at 29-30.) Plaintiff testified that it was below 30 degrees that February night. (Id. at 30.) He attempted unsuccessfully to use the pay phone outside of the jail to call for a ride, and then tried to walk to the nearby Goshen Diner before he became dizzy and his knees gave out after approximately fifteen steps. (Id. at 31-32.) He went back to the phone and made another unsuccessful attempt to call his family. (Id. at 31.) Plaintiff then banged on the jail door, but personnel would not let him back in. (Id.) Plaintiff then blacked out, and he woke up to his son standing over him; his son subsequently removed him from the jail premises and took him home. (Id.) Thereafter, plaintiff commenced this action on February 1, 2002. (Complt.) DISCUSSION

 I. Standard of Review

  Under FED. R. CIV. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255. To defeat summary judgment, the nonmovant must go beyond the pleadings and "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court's role at this stage of the litigation is not to decide issues of material fact, but to discern whether any exist. See Gallo v. Prudential Residential Servs., LP., 22 F.3d 1219, 1224 (2d Cir. 1994).

 II. Whether Plaintiff's Substantive Claims State Cognizable Constitutional Violations

  With respect to the substance of plaintiff's claims, defendants, noting the traditional latitude that the courts accord to corrections officials in the administration of their facilities,*fn19 argue that any injury arising from plaintiff's cell temperature and food deprivation claims is de minimis and cannot form the basis of a constitutional violation. (Def. County Mem. Supp. Summ. J. at 12-16, 23-24.) Defendants also argue that the decision to transfer plaintiff to Riker's was supported by legitimate penological reasons and that there is no admissible evidence that it was an improper punitive or retaliatory transfer. (Id. at 16-22.) Finally, defendants also contend that they had no duty to plaintiff upon his release that would form the basis for a constitutional violation. (Id. at 24-26.) Plaintiff argues in response, albeit in a somewhat skeletal manner, that actions by ...

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