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Thomsen v. County of Erie

January 26, 2006

JAMES M. THOMSEN, SR., PLAINTIFF,
v.
COUNTY OF ERIE, NEW YORK, ERIE COUNTY SHERIFF'S DEPARTMENT, ERIE COUNTY DISTRICT ATTORNEYS OFFICE, ERIE COUNTY SHERIFF PATRICK GALLIVAN, ERIE COUNTY SHERIFF CHIEF SCOTT R. PATRONIC, 3RD OFFICER WHO BEAT PLAINTIFF, ERIE COUNTY SHERIFF THOMAS STABELL, ERIE COUNTY SHERIFF DETECTIVE CHARLES TIRONE, ERIE COUNTY HOLDING CTR. SUPERINTENDENT H. MCCARTHEY GIPSON, ASSISTANT PROSECUTOR CANDACE VOGEL, ERIE COUNTY ATTORNEY CHARLES SAWYER, ERIE COUNTY MEDICAL CENTER, UNNAMED MEDIA PERSONS AND CAROL ALAIMO, DEFENDANTS.*FN1



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn2

Plaintiff, proceeding pro se, commenced this action on March 31, 2000 against sixteen county defendants - twelve individually named defendants and four Erie County departments or agencies (collectively "County Defendants") - and WKBW Channel 7 News. Five of the County Defendants and WKBW Channel 7 News have since been dismissed from the action and Carol A. Alaimo has been added as a defendant.*fn3 On December 28, 2000, the undersigned dismissed plaintiff's March 31, 2000 Complaint ("Original Complaint") without prejudice for failure to comply with the Federal Rules of Civil Procedure ("FRCvP") and instructed plaintiff to file an amended complaint in compliance with the requirements of the FRCvP - viz., FRCvP 8(a)'s requirement that a complaint be a "short and plain statement of the claim[s]" and FRCvP 10(b)'s requirement of properly numbered paragraphs and separated counts ("Dec. 28, 2000 Order").*fn4 (Dec. 28, 2000 Order, at 3-6.) Plaintiff filed an amended complaint on March 28, 2001 ("First Amended Complaint"), which the County Defendants moved to dismiss on April 17, 2001. After plaintiff was granted several extensions in which to file a second amended complaint - the last of which occurred pursuant to an Order issued by the undersigned on February 12, 2003 ("Feb. 12, 2003 Order")*fn5 -, plaintiff filed his Second Amended Complaint on April 29, 2003.*fn6 The County Defendants answered plaintiff's Second Amended Complaint on May 19, 2003. Plaintiff moved for partial summary judgment on April 4, 2005 and the County Defendants moved for summary judgment on May 2, 2005. For the reasons set forth below, plaintiff's motion will be denied, the County Defendants' motion will be granted. No cognizable claim will remain against Alaimo and plaintiff's case will be dismissed in its entirety.

Plaintiff has filed three different complaints in this action and attempts to have the allegations in all three complaints considered by the Court. Plaintiff's Second Amended Complaint, however, replaces his first two complaints and only the allegations contained therein will be addressed herein. "It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect." Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668-669 (2d Cir. 1977); see also Rodriguez v. N.Y. State Dept. of Corr., 2004 U.S. Dist. LEXIS 13769, at *8 (W.D.N.Y. 2004) (Elfvin, J.) ("[P]laintiff's amended complaint must include all of the allegations against each of the defendants named in the complaint so that the amended complaint may stand alone as the sole complaint in this action which the defendants must answer."). Thus, plaintiff's attempt to incorporate his 55-page Original Complaint and his 45-page First Amended Complaint is impermissible. The undersigned found the Original Complaint to be "so confused, ambiguous, vague and otherwise unintelligible that it can not be remedied either through a more definite statement or by striking portions of it and that the only way to proceed is to dismiss the Complaint for failure to comply with FRCvP." (Dec. 26, 2000 Order, at 5-6.) Such Order also held that "[i]f the amended complaint fails to so comply and is still of such a nature that it cannot be cured by a motion for a more definite statement or a motion to strike, this Court will entertain a motion by the defendants to dismiss with prejudice." (Id. at 6.) Plaintiff then filed his First Amended Complaint, which the undersigned found "is also not in compliance with the FRCvP as it is no more intelligible than his original Complaint." (Feb. 12, 2003 Order, at 2 n.2.) Plaintiff was ordered to file and serve a second amended complaint or have his case dismissed with prejudice. (Id. at 3.) Plaintiff then filed his Second Amended Complaint which is the subject of the pending motions for summary judgment.

The facts are found as follows and are undisputed except where otherwise noted.*fn7 In September 1998, plaintiff was living in Niagara Falls, Canada with his wife, defendant Carol Alaimo, and had an office on Grand Island, N.Y. On October 28, 1998, plaintiff accessed Alaimo's electronic mail ("e-mail") to see if she was having an affair. Plaintiff alleges that he unintentionally discovered Alaimo's stored, undeleted e-mails while doing routine maintenance on his computer. He admits to forwarding eleven e-mails to his business account for potential divorce proceedings. He claims that he and Alaimo were having marital disputes and that Alaimo was having an affair. In an alleged attempt to save his marriage, plaintiff called Alaimo often, posted pictures of her on the internet and publicized her affair. He claims that such activities are an exercise of his First Amendment right to free speech and are protected by spousal privilege.

In November 1998, Alaimo contacted defendant Scott R. Patronik, head of the Erie County Sheriff's Department Computer Crimes Division, to inform him that plaintiff had accessed her e-mail without permission. To that end, Alaimo executed a sworn statement on November 2, 1998. Plaintiff claims that Alaimo had used her position with the press to manipulate the police; in particular, plaintiff claims that the County Defendants agreed to investigate plaintiff in exchange for receiving positive press coverage. Patronik investigated Alaimo's complaint, found evidence in support thereof and contacted Candace Vogel, an Assistant District Attorney for Erie County. Patronik and Vogel believed that plaintiff may have committed the felony of Eavesdropping in violation of New York Penal Law ("NYPL") §250.05. As such, subpoenas were issued and served. Plaintiff claims that he offered to help in the investigation, but was denied said opportunity. The subpoenas and investigation discovered that Alaimo's e-mails were obtained by a computer located at plaintiff's Grand Island office.

A search warrant was issued on December 11, 1998 to search plaintiff's Grand Island office, where the Erie County Sheriff's Department found Alaimo's e-mails on plaintiff's computer. Plaintiff claims that the County Defendants exceeded the time limits and scope of the search warrant. An arrest warrant for plaintiff was issued on December 18, 1998. Plaintiff claims that the arrest warrant was based on false testimony and tampered evidence. Plaintiff knew of the arrest warrant, was represented by counsel, avoided the authorities and was suicidal. Plaintiff swallowed mercury just prior to his April 2, 1999 arrest in East Greenbush, N.Y. Plaintiff claims that swallowing mercury was not a suicide attempt.

On April 2, 1999 - the day of plaintiff's arrest -, Patronik and Detective Charles Tirone of the Erie County Sheriff's Department went to the Rensselaer County Correctional Facility ("RCCF") to pick up plaintiff and bring him to the Erie County Holding Center ("ECHC") in Buffalo to be arraigned. Plaintiff told Patronik and Tirone upon their arrival at the RCCF that he would die soon, but did not tell them that he had swallowed mercury. Patronik and Tirone, therefore, searched plaintiff and found nothing. Plaintiff claims that, on the drive to the ECHC from the RCCF, he complained about the handcuffs, lost consciousness and generally felt ill. He, moreover, alleges that Patronik and Tirone attempted to kidnap and transport plaintiff to Canada, but Canadian officials prevented such from occurring. Plaintiff claims that Patronik and Tirone intentionally attempted to make plaintiff feel very uncomfortable and ignored his pain and illnesses. Plaintiff allegedly requested medical attention.

After arriving at the ECHC, plaintiff refused to exit the car and was pulled from it. Plaintiff claims that said pulling injured his left hip. Plaintiff further alleges that Patronik and Tirone battered and kicked him causing severe mental and physical injuries. The County Defendants deny these allegations.

Patronik and Tirone turned plaintiff over to the custody of the ECHC. Plaintiff told an ECHC employee that he had swallowed mercury and was immediately taken to Erie County Medical Center ("ECMC"). Plaintiff was at ECMC's medical unit from April 3 to April 14, 1998 for, inter alia, post mercury ingestion, suicidal ideation, chest pain and hypertension. From April 14 to April 21, 1998, plaintiff was admitted to the psychiatric unit of ECMC. Plaintiff has a history of depression and had injured his hip in a prior car accident. During this time, plaintiff was arraigned by Judge Patrick Carney of the Buffalo City Court on the eavesdropping charges. Upon his release from ECMC, plaintiff made bail and did not return to the ECHC as an inmate. Plaintiff claims that he was denied adequate medical care, was imprisoned at ECMC and was not able to make a phone call until a couple of days after being first taken to ECMC and that his mental health evaluations at ECMC were falsified.

On April 22, 1998, the District Attorney's Office reduced the charges against plaintiff from Eavesdropping under NYPL §250.05 to Aggravated Harassment in the Second Degree under NYPL §240.30(1). Plaintiff's attorney did not object to the reduction of the charges and requested the filing of new accusatory instruments, which were filed with the Buffalo City Court and consisted of an Accusatory Instrument and a Supporting Deposition signed by Alaimo. Plaintiff moved to suppress that which was discovered pursuant to the December 11, 1998 search warrant and such was denied. Plaintiff submitted two Notices of Claim upon ECMC and Erie County on May 10, 1999 attempting to allege essentially what he attempts to allege in this action. On May 10, 2000, plaintiff accepted an Adjournment in Contemplation of Dismissal under NYPL §170.55 and commenced this action.

Summary judgment may be granted if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).

When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non-moving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." FRCvP 56(e); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).

Plaintiff's Second Amended Complaint makes a series of factual allegations, states several times that he is incorporating the allegations of his previous two complaints, (Second Am. Compl. ¶¶40, 41, 197, 199-201) and, almost randomly, makes a laundry list of claims or causes of action. Plaintiff states that the allegations "constitutes [sic] a RICO cause of action" and that "[t]he predicate acts are wire fraud (multiple counts), *** Obstruction of justice, Violation of Due Process, Constitutional Rights, Oaths of Office, policy and procedures, Medical Malpractice, Illegal Search and Seizure of person and property, assault, perjury, and other acts detailed in other filings in this case *** and attempted kidnapping", but does not allege the elements of any of these claims or how the allegations constitute the listed violations. (Id. ¶¶192, 196-198.) Plaintiff continues: "The actions of defendants constitute causes of action for violations of the civil rights of plaintiff, conspiracy to violate his civil rights, obstruction of justice, defamation, and RICO as more fully set forth in his previous complaint(s) in this case." (Id. ¶200.)

As held supra, plaintiff cannot incorporate his two previous complaints in his Second Amended Complaint because such defeats the purpose of an amended complaint and would violate the Court's Dec. 28, 2000 and Feb. 12, 2003 Orders. The undersigned dismissed the Original Complaint (see Dec. 28, 2000 Order) and found that the First Amended Complaint was as unintelligible as the Original Complaint and would be dismissed with prejudice if plaintiff did not submit a Second Amended Complaint. (See Feb. 12, 2003 Order.) Plaintiff's Original and First Amended Complaint are so confusing and vague "that it is impossible for this Court - not to mention the defendants - to determine which causes of action plaintiff is actually attempting to bring against each specific defendant and upon what factual basis." (Dec. 26, 2000 Order, at 5.) Plaintiff's Second Amended Complaint is no less confusing or vague. This is plaintiff's third opportunity to meet his pleading requirements under the FRCvP and the third time that he has failed at such. Although plaintiff states in his Second Amended Complaint that he "seeks leave to further amend this complaint" (Second Am. Compl. ¶6), such will not be granted by this Court. See, e.g., De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 72 (2d Cir. 1996) (upholding district court's denial of plaintiff's fifth attempt to amend his complaint because he had been given "ample prior opportunity to allege a claim"); Armstrong v. McAlpin, 699 F.2d 79, 93-94 (2d Cir. 1983) ("Because the complaint whose allegations were being considered by the district court was ...


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