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COGSWELL v. COUNTY OF SUFFOLK DEPUTY SHERIFF'S DEPT.

July 7, 2005.

RITA A. COGSWELL, Plaintiff,
v.
COUNTY OF SUFFOLK DEPUTY SHERIFF'S DEPT., DEPUTY J. BOLLETERI, DEPUTY G. LYNN, and DEPUTY E. KENNEDY, Defendants.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

Pending before the Court is a motion by the defendants County of Suffolk Deputy Sheriff's Dept. (the "County" or "Sheriff's Department"), Deputy J. Bolleteri, Deputy G. Lynn, and Deputy E. Kennedy (collectively the "Defendants"), for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

  I. BACKGROUND

  A. Procedural History

  On July 30, 2002, Rita Anne Cogswell ("Cogswell" or the "Plaintiff"), proceeding pro se, commenced this action against Suffolk County Hearing Examiner Rodriquez, Suffolk County Sheriff's Department, Deputy J. Bolliterri, and E. Kennedy. On October 2, 2002, the plaintiff filed an amended complaint, asserting claims for malicious prosecution, conspiracy to commit fraud, conspiracy to commit perjury, conspiracy to deceive, violation of civil rights, violation of the right to privacy, malfeasance, slander, harassment, prejudice, discrimination, breaking and entering, false arrest, defamation, illegal search and seizure and bias.

  In a memorandum of decision and order, dated April 22, 2003, the Court dismissed the amended complaint, with leave to amend, because of Cogswell's failure to comply with Fed.R.Civ.P. 8(a). On May 8, 2003, the plaintiff filed a second amended complaint against Rodriquez, Deputy Bolleteri, G. Lynn, and E. Kennedy. In a memorandum of decision and order, dated January 24, 2004, the Court dismissed all of the claims against New York State Hearing Examiner Rodriguez on the grounds of, among other things, absolute judicial immunity. B. Factual Background

  The background of this case is incorporated in this Court's two previous decisions dated April 22, 2003, and January 24, 2004, familiarity with which is presumed. The relevant facts will be discussed for the purpose of addressing the instant motion. The facts have been taken from the second amended complaint, Cogswell's deposition on September 15, 2004, Cogswell's Rule 56.1 counter-statement, as well as warrants for the arrest of Cogswell's submitted by the Defendants.

  In the second amended complaint, the plaintiff describes various incidents arising out of a child support hearing in the Suffolk County Family Court. On July 16, 2001, the plaintiff appeared for a child support hearing before Hearing Examiner Rodriquez, who was the presiding officer. Allegedly, when Rodriguez met with the Plaintiff and the father of her child, Rodriquez "told [the parties] to fight out in the hallway [sic] because he did not want to get involved." Thereafter, the Plaintiff left the courthouse, and claimed that Rodriquez refused to meet with her.

  On July 17, 2001, Family Court Judge Ettore A. Simeone issued a bench warrant for the Plaintiff's arrest. The warrant was delivered to Cogswell's residence by the Sheriff's Department and was received by Cogswell. On August 1, 2001, Cogswell appeared in Family Court in response to the bench warrant, but left the courthouse before the proceeding commenced. That day, Family Court Judge Barbara Lynaugh issued a second bench warrant for the Plaintiff's arrest.

  The second amended complaint alleges that Deputies Bolletari, Lynn, and Kennedy began searching for Cogswell pursuant to the bench warrant issued on August 1, 2001 by questioning several of her neighbors and friends as to her possible whereabouts. Cogswell states that in the evening of August 31, 2001, the Deputies received information that Cogswell returned home from Florida. That night, the Deputies arrived at Cogswell's home that she shares with her boyfriend Kenneth Hemmendinger ("Hemmendinger"). He was in the house at the time and began tape recording the incident. Upon discovering this, Deputy Bolleteri confiscated the tape and tape recorder located on top of the television set and arrested Hemmendinger for obstruction of justice. After approximately ten minutes, the deputies located Cogswell in the house and arrested her. Cogswell was transported by car to the sheriff's office where she was held overnight. The next day, on September 1, 2001, Cogswell was released on bail.

  Although the second amended complaint is not a model of clarity, a liberal reading of it reveals that the plaintiff apparently brings claims under Section 1983 for false arrest, unlawful entry into her home, unreasonable search and seizure of the tape recorder, a claim for "harassment," and tort claims under New York state law. The Plaintiff lists malicious prosecution in her first amended complaint as a claim, but the second amended complaint omits that claim, and it appears that there are no allegations that she was prosecuted for a crime. The Defendants now move for summary judgment based on the pleadings, the deposition of the Plaintiff, and the arrest warrant issued on August 1, 2001.

  II. DISCUSSION

  A. Summary Judgment Standard

  A motion for summary judgment should be granted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2550 (1986). The moving party bears the burden of establishing the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986). "When a movant demonstrates through competent evidence that no material facts are genuinely in dispute, the non-movant `must set forth specific facts showing that there is a genuine issue for trial.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(e)). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Id. (internal quotations and citations omitted); see Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 155, 106 S. Ct. 2505, 2513-14 (1986); Van v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). Disputed facts that are not material to ...


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