The opinion of the court was delivered by: JOHN GLEESON, District Judge
Defendants move for summary judgment with respect to plaintiff
Doug Cass's claim under 42 U.S.C. § 1983 that his Fourth
Amendment rights were violated by the October 13, 1999,
warrantless arrest of him at his home. For the reasons set forth
below, the motion is granted.
On October 12, 1999, defendant Robert Perricone, an
investigator with the Suffolk County Office of Consumer Affairs,
filed four misdemeanor informations against Doug Cass for
performing home repairs without a license, in violation of
Suffolk County Code Ch. 345. (See O'Connor Decl., Ex. C.) The
informations were based on complaints by consumers. (Id.) At
that time, Cass*fn1 did not have a license from the Office
of Consumer Affairs to perform home appliance repairs. He was
also on probation pursuant to a Suffolk County Court order dated
March 25, 1997, based on a conviction for driving while
intoxicated. (O'Connor Decl., Ex. A.) The probation was for a
period of five years, and had a number of conditions, including
that Cass was required to (1) report to a Probation Officer; (2)
permit the Probation Officer to visit him at his home or
elsewhere; (3) answer all reasonable inquiries by the Probation
Officer; (4) "submit to a reasonable search of [his] person by a
Probation Officer when the officer believes [he] may be in
violation of probation;" and (5) permit search of his vehicle or
place of abode. (Id.; see also id., Ex. B.)
On October 13, 1999, Probation Officer Donald O'Connor visited
Cass's residence. (O'Connor Aff't at ¶ 8; D. Cass Aff't at ¶¶
1-2.) He rang the bell and was permitted to enter the residence.
O'Connor requested that Cass sign medical authorization forms,
but Cass refused. (O'Connor Aff't at ¶ 14; D. Cass Aff't at ¶ 3.)
Detective Theodore Walker entered the residence five to ten
minutes later "without knocking on the door and without ringing
the doorbell." (D. Cass Aff't at ¶ 5.)*fn2 Detective Walker then
arrested Cass on the charges set forth in the misdemeanor
informations, i.e., performing appliance repair without a
Doug and Lori Cass filed the instant complaint on May 24, 2001.
(O'Connor Decl., Ex. E.) In October of 2002, defendants moved for
summary judgment and plaintiffs cross-moved for summary judgment.
On October 25, 2002, I held oral argument and granted defendants'
motion in part, denied defendant's motion in part and denied
plaintiffs' cross-motion. (Tr. dated Oct. 25, 2002, at 19-30.) My
decision left intact one of the plaintiffs' claims the claim
alleging that Cass's rights under the Fourth Amendment were
violated by his warrantless arrest in his home. (Id. at 30.) I
provided defendants with an opportunity to renew their motion for
summary judgment on this remaining claim. Counsel for both sides
then let the case languish. In response to an inquiry from the
Court in August 2004 as to why it should not be dismissed for
failure to prosecute, plaintiffs' counsel, who had moved to
Florida, said he wanted to sue some more people, including CBS
news and one of their reporters.
That did not come to pass, and eventually defendants renewed
their summary judgment motion with respect to the remaining
claim, as they said they would two years earlier.*fn3 I
heard oral argument on January 7, 2005. For the reasons set forth
below, the motion is granted.
Under Rule 56 of the Federal Rules of Civil Procedure, the
moving party is entitled to summary judgment "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The
substantive law governing the case identifies the facts that are
material, and "[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
warranted only if "the evidence is such that a reasonable jury
could [not] return a verdict for the nonmoving party." Id.
Moreover, "the inferences to be drawn from the underlying facts
. . . must be viewed in the light most favorable to the party
opposing the motion." Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks
omitted); see also, e.g., Michalski v. Home Depot, Inc.,
225 F.3d 113, 116 (2d Cir. 2000) ("[W]e . . . view [the facts] in the
light most favorable to, and draw inferences in favor of, the
non-moving party. . . ."). Once the moving party has met its
burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts. . . .
[T]he non-moving party must come forward with `specific facts
showing that there is a genuine issue for trial.'"
Matsushita, 475 U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e),
emphasis in original).
B. Legal Standard for Recovery under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured. . . . "Section 1983 itself creates no substantive rights, [but] . . .
only a procedure for redress for the deprivation of rights
established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). In order to maintain a § 1983 action, Cass must allege
two essential elements. First, "the conduct complained of must
have been committed by a person acting under color of state law."
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citing
Parratt v. Taylor, 451 U.S. 527, 535 (1981), ...