United States District Court, E.D. New York
July 7, 2005.
RITA A. COGSWELL, Plaintiff,
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.").
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
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 the issue at hand will not defeat
summary judgment. See Anderson, 477 U.S. at 248,
106 S. Ct. at 2610. "Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of judgment." Id. A dispute about a material fact is
genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
Notably, "the trial court's task at the summary judgment motion
state of litigation is carefully limited to discerning whether
there are genuine issues of material fact to be tried, not to
decide them. Its duty, in short, is confined at this point to
issue-finding, it does not extend to issue resolution." Gallo v.
Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir.
1994); see Donohue v. Windsor Locks Board of Fire
Commissioners, 834 F.2d 54, 57 (2d Cir. 1987) (holding that on a
motion for summary judgment, the court "cannot try issues of
fact; it can only determine whether there are issues to be
tried"). Also, the Court is mindful that the plaintiff is proceeding pro
se and that her submissions should be held "`to less stringent
standards than formal pleadings drafted by lawyers . . .'"
Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173
(1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519,
520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)). District courts
should "read the pleadings of a pro se plaintiff liberally and
interpret them `to raise the strongest arguments that they
suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). Moreover, in order for the Court to properly dismiss a
pro se plaintiff's complaint, "it must be beyond doubt that the
plaintiff can prove no set of facts in support of his [or her]
claim which would entitle him [or her] to relief." Taylor v.
Vermont Department of Education, 313 F.3d 768, 775 (2d Cir.
2002) (quoting Lerman v. Board of Elections, 232 F.3d 135,
139-140 (2d Cir. 2000)). Nevertheless, the Court is also aware
that pro se status "does not exempt a party from compliance with
relevant rules of procedural and substantive law. . . ." Traguth
v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (internal quotations and
In addition, when the nonmoving party is pro se, summary
judgment may be granted only if the undisputed facts "show that
the moving party is entitled to a judgment as a matter of law,"
even if the nonmoving party relies on its allegations and bald
assertions. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Also, the Second Circuit has cautioned that a district court may
only grant the motion if the pro se party has received notice that failure to respond to the
motion "will be deemed a default." Id. In this case, with its
motion for summary judgment the Defendant served a "Notice to Pro
Se Litigant Opposing Motion for Summary Judgment," as required
under Local Rule 56.2.
B. As to the Section 1983 Claim for False Arrest
The Fourth Amendment provides the constitutional basis for
claims of false arrest. Singer v. Fulton County Sheriff,
63 F.3d 110, 115 (2d Cir. 1995). It is well-settled that the
"existence of probable cause to arrest constitutes justification
and is a complete defense to an action for false arrest . . .
under § 1983." Weyant v. Okst, 101 F.3d 845, 853 (2d Cir.
1996); see also Singer 63 F.3d at 118 ("There can be no
federal civil rights claim for false arrest where the arresting
officer had probable cause."). In general, "an arrest pursuant to
a valid warrant is presumptively made with probable cause."
Martinetti v. Town of New Hartford Police Dep't,
112 F. Supp. 2d 251, 252-53 (N.D.N.Y. 2000). This presumption of probable
cause can be rebutted only by a showing of "fraud, perjury, or
the misrepresentation or falsification of evidence." Artis v.
Liotard, 934 F. Supp. 101, 103 (S.D.N.Y. 1996).
Assuming that the Plaintiff could rebut the presumption of
probable cause by showing that the warrant was issued
erroneously, the claim would fail as a matter of law because the
Deputies are entitled to qualified immunity. A law enforcement
officer that reasonably relies on a facially valid warrant issued
by a neutral and detached magistrate is generally entitled to qualified immunity
for such action. See Simms v. Village of Albion,
115 F.3d 1098, 1109 (2d Cir. 1997). One exception to this general rule is
if there exists some reason to question the validity of a
warrant. Id. at 1107.
The Court finds that there was no reason to suspect the
validity of the bench warrant issued by a Family Court Judge for
the Plaintiff's arrest, under these circumstances. Although the
Plaintiff's November 22, 2004 statement opposing the motion for
summary judgment describes the August 1, 2001 bench warrant as
"erroneous," the Deputies had no reason to believe the warrant
was not valid. The warrant is facially valid and was issued by a
neutral Family Court Judge. In addition, the Deputies took
reasonable steps in carrying out the warrant by questioning
neighbors as to whether the Plaintiff resided at the address
stated on the warrant. As such, the Court finds that there was
probable cause to arrest the Plaintiff, as a matter of law. In
addition, the Deputies are entitled to qualified immunity based
on the arrest warrant.
C. As to the Section 1983 Claim for Unlawful Entry
The Plaintiff's unlawful entry claim is also without merit.
"[A]n arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the
suspect lives where there is reason to believe the suspect is
within." Payton v. New York, 445 U.S. 573, 603,
100 S. Ct. 1371, 63 L. Ed.2d 639 (1980); accord United States v. Lovelock, 170 F.3d 339, 343
(2d Cir. 1999). This authority includes arrests pursuant to bench
warrants issued for failing to appear in court. See United
States v. Spencer, 684 F.2d 220, 223 (2d Cir. 1982).
Here, the bench warrant was issued for Cogswell's arrest due to
her failure to appear in court. The warrant contained "special
instructions" which read: "respondent to be taken into custody
upon surrender or execution." The Defendants were in possession
of the warrant, and therefore had authority to enter Cogswell's
home. The Defendants had reason to believe the Plaintiff was
within her home when they entered "as they were informed of
[Cogswell's] return from Florida that evening," (Compl. at 4),
and the time was approximately 10:20 p.m. See United States of
America v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (stating that
there was a reasonable basis for agents to conclude the
individual named on the warrant was at home when several
individuals said he lived there and it was a 8:45 a.m. on a
Sunday); see also United States v. Michale Stinson,
857 F. Supp. 1026, 1032 (D. Conn. 1994) (holding that it was reasonable
to believe the individual named in the warrant was home at 7
a.m.). Therefore, the Court finds that the Defendants are
entitled to summary judgment dismissing the Plaintiff's claim for
D. As to the Claims of Harassment In her complaint, the Plaintiff refers to instances where the
Defendants approached neighbors and friends of Cogswell, asking
where she was hiding. The Plaintiff claims that these instances
constituted unlawful harassment. "Article III's requirement of a
`case or controversy' obligates the federal courts to hear only
suits in which the plaintiff has alleged some actual or
threatened harm to him or herself as a result of a `putitively
illegal action.'" Leibovitz v. New York Transit Authority,
252 F.3d 179, 184 (2d Cir. 2001) (citing Linda R.S. v. Richard D.,
410 US. 614, 617, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973));
accord Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197,
L. Ed. 2d 343 (1975). The Court finds that in this case, the
events that the Plaintiff complains of are not a valid cause of
action under Article III, as the Plaintiff suffered no injury
directly and was not threatened by the Defendants questioning of
her neighbors and friends as to her whereabouts. As such, the
Defendants are entitled to summary judgment dismissing the
Plaintiff's claims for harassment.
E. As to the Alleged Unlawful Seizure of the Tape and Tape
The Plaintiff also appears to assert a claim for unlawful
seizure of the tape and tape recorder that were taken from
Hemmendinger. "The prevailing rule under the Fourth Amendment
that searches and seizures may not be made without a warrant is
subject to various exceptions." United States v. Edwards,
415 U.S. 800, 802, 94 S. Ct. 1234, 39 L. Ed.2d 771. One exception is
the "plain view doctrine" under which a seizure is constitutional
if an officer is "lawfully located in a place from which the object can be plainly seen." Bradway v. Gonzales, 26 F.3d 313,
319 (2d Cir. 1994). Therefore, "the Fourth Amendment does not
require a police officer to obtain a warrant before . . . seizing
an item in plain view if there is cause to believe it is evidence
of a crime." United States v. Gori, 230 F.3d 44, 50 (2d Cir.
2000); accord Edwards, 415 U.S. at 808-09.
As discussed above, the Defendants' possession of a valid bench
warrant for Plaintiff's arrest legally entitled them to enter the
Plaintiff's home. During the time the Defendants were in the
house to arrest the Plaintiff, Hemmendinger was placed under
arrest for obstruction of justice. The tape and tape recorder
were evidence of Hemmendinger's obstruction of justice and were
in plain view to the defendants, as they were found on top of the
television set. Therefore, the Defendants did not unlawfully
seize the tape and tape recorder. See Spencer 684 F.2d at 224
(the court concluded that a bench warrant issued for the
Defendant's arrest justified police entry into the Defendant's
home and permitted the police to seize evidence of a robbery that
was found in the Defendant's closet while the police were
searching for the Defendant).
Furthermore, the Court notes that the Plaintiff never stated
who owns the tape and tape recorder. As discussed above, "Article
III's requirement of a `case or controversy' obligates the
federal courts to hear only suits in which the plaintiff has
alleged some actual or threatened harm to him or herself as a
result of a `putitively illegal action.'" Leibovitz, 252 F.3d at 184 (citing Linda,
410 U.S. at 617); accord Warth, 422 U.S. at 498-499.
Therefore, if the tape and tape recorder belong to Hemmendinger,
the Plaintiff would have suffered no actual or threatened harm
and would have no standing to sue for the seizure of the
property. Accordingly, the Defendants are entitled to summary
judgment dismissing the Plaintiff's claim for unlawful seizure of
the tape and tape recorder.
F. As to the Claims against Suffolk County
Municipalities may not be held liable under section 1983 for
the acts of their employees based solely on a theory of
respondeat superior. Powell v. Gardner, 891 F.2d 1039, 1045 (2d
Cir. 1989); accord Soucie v. County of Monroe, 736 F.Supp 33,
38 (W.D.N.Y. 1990). "For the municipality to be held liable, the
plaintiff must show that constitutional deprivation was caused by
municipal custom or practice." Soucie, 736 F.Supp. at 38. As
stated above, there was no constitutional deprivation by the
defendant deputies. Thus, there can be no section 1983 claim
against Suffolk County. See Escalera v. Lunn, 361 F.3d 737,
749 (2d Cir. 2004) (holding that because there was no section
1983 claim against the individual police officer defendants the
County was also entitled to summary judgment).
All of the allegations in the complaint are directed at the
individual acts of the deputies and not the County. The Plaintiff
has not alleged that a custom or policy of the County caused a
deprivation of civil rights. A liberal reading of the complaint reveals that there are no allegations against the County, and it
appears that it is only a defendant by virtue of being named in
the complaint. As such, the Court finds that the motion for
summary judgment dismissing the complaint against the County is
G. As to the State Law Claims
The complaint appears to allege various state law claims. In
order to entertain these claims, the Court must exercise
supplemental jurisdiction, pursuant to 28 U.S.C. § 1367. This
statute provides, in pertinent part: "[t]he district courts may
decline to exercise supplemental jurisdiction over a claim under
subsection (a) if . . . (3) the district court has dismissed all
claims over which it has original jurisdiction." In addition, the
Second Circuit has stated that "if [a]ll federal claims are
dismissed before trial . . ., the state claims should be
dismissed as well." Motorola Credit Corporation v. Uzan,
388 F.3d 39, 56 (2d Cir. 2004) (quoting Castellano v. Bd. of
Trustees, 937 F.2d 752, 758 (2d Cir. 1991)) (emphasis added in
Motorola). Because this decision grants the Defendants' motion
for summary judgment dismissing all of the Plaintiff's federal
claims, the Court declines to exercise supplemental jurisdiction
and dismisses any and all state claims.
Based on the foregoing, it is hereby ORDERED, that the Defendants' motion for summary judgment
under Rule 56 of the Fed.R.Civ.P. is GRANTED dismissing the
complaint in its entirety; and it is further
ORDERED, that the Clerk of the Court is directed to close
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