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.").
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
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.
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 ...