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SWINDELL v. NEW YORK STATE DEPT. OF ENVTL. CONSERVATION

May 2, 2005.

Kathleen Swindell, Celine D. Olsen, Clare Loiacono, and Shawn Hardwick, Plaintiffs,
v.
New York State Department of Environmental Conservation, Eric Roderick, John Ellithorp, Scott Florence, Walter Heinrich, and Darren Holmes, Defendants.



The opinion of the court was delivered by: NEAL McCURN, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

  Plaintiffs, Kathleen Swindell ("Swindell"), Celine A. Olsen ("Olsen"), Clare Loiacono ("Loiacono"), and Shawn Hardwick ("Hardwick") (collectively, "Plaintiffs") originally filed this civil rights action against the New York State Department of Environmental Conservation ("DEC"), Eric Roderick ("Roderick"), John Ellithorp ("Ellithorp"), Scott Florence ("Florence"), Walter Heinrich ("Heinrich") and Darren Holmes ("Holmes"). Prior to commencement of the present motion, Defendants DEC, Ellithorp, Florence and Holmes were dismissed from this action with prejudice. See Dkt. Nos. 17, 22 & 27.

  Plaintiffs' complaint ("the Complaint") sets forth various causes of action for constitutional violations as predicates to claims pursuant to 42 U.S.C. § 1983, as well as several tort claims pursuant to New York state law as follows: Count I sets forth a claim by all plaintiffs for violations of their Fourth Amendment right to be free from unreasonable seizures; Count II sets forth a state tort claim by all plaintiffs for false arrest and imprisonment; Count III sets forth a claim by Swindell, Olsen and Loiacono for excessive force in violation of the Eighth Amendment; Count IV sets forth a state tort claim by Swindell, Olsen and Loiacono for battery; Count V sets forth a claim by Swindell, Olsen and Loiacono for deprivation of their right to due process in violation of the Fourteenth Amendment; Count VI sets forth a state tort claim by Swindell, Olsen and Loiacono for malicious prosecution; and Count VII sets forth a state tort claim by all plaintiffs for negligence. In his Answer, Roderick denied liability on each of these claims, and further set forth a counterclaim against Swindell, Olsen and Loiacono for assault. See Def. Roderick's Ans. & Countercl., Dkt. No. 18.

  Presently before the court is a motion for summary judgment by defendants Roderick and Heinrich ("Defendants") against Plaintiffs on the entire Complaint. Oral argument was heard regarding the pending motion in Syracuse, New York on January 5, 2005.

  The sole basis for Defendants' motion is that they are entitled to qualified immunity. In their opposition papers, Plaintiffs concede that Heinrich is entitled to qualified immunity on all claims against him and therefore, the entire action as against Heinrich should be dismissed. Further, Plaintiffs concede that Roderick is entitled to qualified immunity for his actions in arresting Hardwick and therefore, the § 1983 Fourth Amendment and state law false arrest and imprisonment claims by Hardwick against Roderick should be dismissed.

  Also in their opposition papers, Plaintiffs argue that Roderick is not entitled to qualified immunity on Hardwick's excessive force claim. However, it is clear from the Complaint that the only claims set forth by Hardwick are Counts I and II (§ 1983 Fourth Amendment and state law false arrest and imprisonment claims) and Count VII (negligence). At oral argument, counsel for Plaintiffs conceded that no excessive force claim is set forth by Hardwick, and that all claims by Hardwick should be dismissed.

  In addition, at oral argument, counsel for Plaintiffs conceded that there is no evidence in the record to support a § 1983 excessive force or state law battery claim against Roderick by Swindell, and therefore, Swindell's claims under Counts III and IV of the Complaint should be dismissed.

  Accordingly, the court granted summary judgment to defendant Heinrich on the entire Complaint and further granted summary judgment to defendant Roderick as to all claims against him by plaintiff Hardwick and as to Counts III and IV of the Complaint insofar as they are alleged against him by plaintiff Swindell. The court reserved decision as to whether Roderick is entitled to qualified immunity on the remaining claims against him.

  II. Factual Background

  This action arises out of events that took place at the Golden Beach State Campground ("the Campground") near Raquette Lake, New York in July 2002, and the resulting arrest and detention of Plaintiffs by Roderick, a DEC Environmental Conservation Officer ("ECO"). Because Hardwick's claims have been dismissed, the court will only discuss the facts of this case as they relate to the remaining plaintiffs, Swindell, Olsen and Loiacono.

  At 1:00 a.m. on July 22, 2002, Roderick arrested Swindell, Olsen and Loiacono. All three were ticketed for the following offenses: Violation of Quiet Hours pursuant to 6 NYCRR § 190.7(a)(12); Refusing Lawful Direction of a DEC Employee pursuant to 6 NYCRR § 190.7(a)(8); and Resisting Arrest pursuant to N.Y. Penal L. § 205.30. See Ex. N to Decl. of Michael McCartin, Aug. 13, 2004, Dkt. No. 35. In addition, Swindell received an appearance ticket for Escape, Third Degree pursuant to New York Penal Law § 205.05.

  Swindell, Olsen and Loiacono (hereinafter "Plaintiffs") are sisters who arrived at the Campground on July 19, 2002 as part of a larger group of family members gathering for a vacation and family reunion. Plaintiffs were aware that the Campground enforces "quiet hours" from 10 p.m. until 7 a.m. At approximately 10:15 p.m. on the evening of July 21, 2002, Roderick and Park Ranger, Darin Homer ("Homer") told Plaintiffs and others at Swindell's campsite that they were being too loud and that they must quiet down and disburse to their own campsites. Roderick was wearing his law enforcement uniform at the time, and Olsen later testified that they assumed he was some type of police officer. Swindell later testified that when Roderick told them to disburse, he said, "I told you to leave the site; if people aren't gone in 20 minutes when I get back, you will be seeing a judge in Piseco." Dep. of Kathleen Swindell, June 4, 2004, at 20:16-19, Ex. A to McCartin Decl., Dkt. No. 35. Twenty minutes later, when Roderick returned to the campsite, Plaintiffs had disbursed.

  A little later in the evening, Roderick began his one-hour journey home, leaving Homer to patrol the Campground by himself. At around midnight, Plaintiffs and a friend, Anne Harvey, were sitting on a picnic table by the beach when Homer approached them and told them they were making too much noise and that he had received complaints from other campers. Immediately after confronting Plaintiffs, Homer made a radio call for a law enforcement officer to come and enforce the quiet hours regulation against Plaintiffs. When Roderick returned to the Campground, Homer informed him that Plaintiffs had ...


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