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May 11, 2005.

COUNTY OF SUFFOLK, ROBERT GAFNEY, CHARLES GARDNER, WILLIAM BAESLER, ROBERT PERRICONE, THELMA DREW, THEODORE WALKER, DONALD O'CONNOR, P.O. KELLERHER, a fictitious name as the true name is unknown, LIEUTENANT CALEBRESE, a fictitious name as the true name is unknown, Defendants.

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 license.

  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.


  A. The Rule 56 Standard

  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), ...

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