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Ferlito v. City of Oswego

August 4, 2006

ANGELA M. FERLITO AND ANGELO FERLITO PLAINTIFFS,
v.
CITY OF OSWEGO, ALEXANDER ZUKOVSKY, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, CITY OF OSWEGO POLICE DEPARTMENT, AND JOHN SMEGELSKY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE OFFICER FOR THE CITY OF OSWEGO POLICE DEPARTMENT, AND MICHAEL DEHM, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE CAPTAIN FOR THE CITY OF OSWEGO POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge

MEMORANDUM - DECISION AND ORDER

Currently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure seeking dismissal of Plaintiffs' summons and dismissal of their Second Amended complaint in its entirety. Dkt. No. 29, Notice of Mot. Plaintiffs have filed their opposition to Defendants' motion. For the reasons set forth below, the Court GRANTS Defendants' motion for summary judgment.

BACKGROUND

Plaintiffs, a married couple who reside in Oswego, New York, Angela M. Ferlito and Angelo Ferlito filed their initial complaint against Defendants City of Oswego ("the City"), Chief of Police Alexander Zukovsky ("Chief Zukovsky"), and Police officers Detective John Smegelsky ("Smegelsky") and Captain Michael Dehm, Jr. ("Dehm") on January 22, 2003. Dkt. No. 1, Compl. Plaintiffs have since twice amended their initial complaint. Dkt. No. 10, First Am. Compl.; Dkt. No. 22, Second Am. Compl.

From September1998 through the end of the 2002-03 school year, Angela Ferlito was a business teacher at the Oswego High School ("High School"). Dkt. No. 29, Letter to Angela Ferlito at ¶ 3, March 19, 2003. On March 18, 2002, she convened a meeting of the Future Business Leaders Club of America at the High School. Dkt. No. 29, Angela Ferlito's Statement. At the close of the meeting, she observed a clear plastic bag on the floor that appeared to contain a greenish/brownish vegetable-like substance. Dkt. No. 22, Second Am. Compl. at ¶¶ 18-19. Suspecting that the bag contained marihuana, she picked it up and asked those students remaining in the room to identify the bag's contents. Id. at ¶ 19. None of the students either identified the bag's contents, acknowledged ownership of the bag or implicated their peers as to ownership of the bag. Id. Angela Ferlito then placed the bag in a desk. Dkt. No. 29, Angela Ferlito's Statement. After the room emptied, she put the bag in her pocket. Id. Two students, Mary Kate Redding ("Redding") and Tabitha Pelkey ("Pelkey"), however, returned to the room, and Redding advised Angela Ferlito that she had dropped the plastic bag on the floor a few minutes earlier. Dkt. No. 22, Second Am. Compl. at ¶ 19. Angela Ferlito relinquished possession of the bag to Redding. Id. Angela Ferlito then left the High School and drove her daughter to a friend's house located a couple of blocks away from the High School.

Dkt. No. 22, Second Am. Compl. at ¶ 19. She then returned to the High School and sought to locate Dennis Farnsworth ("Farnsworth"), the High School's Principal. Id. Unable to find Farnsworth, Angela Ferlito located an Assistant Principal and advised her as to the incident with the bag and student. Id. Angela Ferlito then identified the student to both Assistant Principals, Susan Piasecki ("Piasecki") and Barbara Wheeler ("Wheeler") and advised them that she believed the student was at an athletic practice on school grounds. Id. Wheeler contacted the City School District of Oswego ("the District") Athletic Department to determine where Redding was practicing. Id. Wheeler and Piasecki located Redding at her athletic practice and confronted her regarding the plastic bag. Dkt. No. 29, Wheeler's Statement. Redding admitted ownership/possession of the bag, whereupon Wheeler and Piasecki confiscated it, called Farnsworth and locked it in his office. Id. On March 19, 2002, City Police Officer Daniel Chamberlain ("Chamberlain"), who is assigned as a School Resource Officer within the City School District, performed a field test on the bag's contents in the presence of Farnsworth and Wheeler, which indicated that bag contained marihuana. Chamberlain took a statement from Redding in which she confirmed that Angela Ferlito gave her the marihuana. Dkt. No. 29, Redding's Statement. Officer Chamberlain then contacted Dehm to report his investigation's findings, which prompted Dehm to meet Chamberlain and Farnsworth at the High School. Dehm took a statement from Wheeler. Dkt. No. 29, Wheeler's Statement. Farnsworth requested that the City Police Department investigate the incident further. Dehm contacted the Office of the Oswego County District Attorney and spoke with then Assistant District Attorney Donald Dodd ("Dodd") who advised Dehm to obtain additional statements. Dehm thereafter assigned Smelgelsky to continue the investigation of the incident. Smegelsky took statements from Farnsworth and Piasecki. Dkt. No. 29, Farnsworth's Statement; Piasecki's Statement. Smegelsky later met Angela Ferlito in an Assistant Principal's office at the High School and asked her to provide a statement, but she became unavailable because of her teaching duties. Angela Ferlito later met Detective Smegelsky at the City Police Department and conveyed to him the previous day's events and signed a statement to that effect prepared by Detective Smegelsky. The following day Smelgelsky also obtained a statement from Pelkey. Dkt. No. 29, Pelkey's Statement.

On March 19 and 20, 2002, Smegelsky consulted with Dodd regarding the incident at the High School. After having received and reviewed copies of the statements of Angela Ferlito, Redding, Farnsworth, Wheeler, Piasecki, and Pelkey, Dodd concluded that it would be proper to charge Angela Ferlito with a B Misdemeanor Criminal Sale of Marihuana in the Fifth Degree, and he informed Smegelsky of the same. Dkt. No. 29, Statement of Material Facts at ¶ 3. Later that day, Smelgelsky filed an accusatory instrument charging Angela Ferlito with Criminal Sale of Marihuana Fifth Degree, a B Misdemeanor, pursuant to the Penal Law of the State of New York § 221.35, for which an Appearance Ticket was issued. Dkt. No. 29, Defs.' Statement of Material Facts at ¶ 4. Smegelsky requested that Angela Ferlito go to the police station, and she voluntarily appeared at the Oswego Police Station where she was issued the Appearance Ticket. Dkt. No. 28, Defs.' Mem. of Law at 3. While Angela Ferlito was "detained" for photographic and fingerprint identification procedures, notably, she was not handcuffed, imprisoned or otherwise detained and was not required to post bail. Id.

On April 11, 2002, Angela Ferlito appeared in Oswego City Court, where she was arraigned before the Honorable James M. Metcalf, who dismissed the accusatory instrument. Dkt. No. 29, Defs.' Statement of Material Facts at 5. On April 23, 2002, the District charged Angela Ferlito with engaging in conduct unbecoming of a teacher. Dkt. No. 29, Notice of Determination of Probable Cause at ¶ 2. Angela Ferlito and the District subsequently entered into an agreement to resolve the disciplinary charges. Dkt. No. 29, Agreement. The parties agreed that on March 18, 2002, Angela Ferlito conducted a meeting of the Future Business Leaders of America Club at the High School. Dkt. No. 29, Agreement at ¶ 1. Following the meeting, and while twelve to fifteen students remained in the room socializing, Angela Ferlito found a clear plastic bag on the floor that contained what she suspected was marihuana, which she placed in her pocket. Id. After the students left the meeting, two students returned, one claiming that the bag and its contents belonged to her sister and that she wanted to retrieve it. Id. at ¶ 2. Angela Ferlito complied with the student's request and returned the bag to the student. Id. Immediately after returning the bag to the student, Angela Ferlito left the High School and drove her daughter a few blocks to a friend's house. Id. at ¶ 3. She immediately returned to the High School where she reported to school administrators that she found what appeared to be a bag of marihuana and that she returned it to the student who claimed it belonged to her sister. Id. at ¶ 4. Angela Ferlito advised the administrators of the student's identity, and the administrators indicated that they would handle the matter henceforth. Id. Soon thereafter, administrators located the student at an athletic practice. Id. at ¶ 5. The student turned over the bag and its contents to the administrators and admitted ownership of the bag. Id. The District adjudicated the matter with regard to the student according to its policies and procedures. Id. Angela Ferlito admitted that she exercised poor judgment by returning the bag to the student and by failing to immediately report the incident to the appropriate District Officials. Id. at ¶ 9. Angela Ferlito acknowledged that there is a policy of zero tolerance with regard to illegal drugs in the District and agreed to participate in any training that the District may recommend in order to ensure that there will be no repetition of that type of incident. Id. at ¶ 10. Angela Ferlito agreed to accept, as penalty for her conduct, a loss of pay for the period from May 22, 2002, through the end of the 2001-02 school year. Id. at ¶ 11. The District agreed that the loss of pay would be assessed by reducing Angela Ferlito's gross pay for the 2002-03 school year by the amount of $6,195.83. Id.

In the event she did not work the entire 2002-03 school year, Angela Ferlito agreed to pay any unpaid balance to the District immediately upon the cessation of her employment. Id. The District, in consideration of Angela Ferlito's acknowledgments and representations, agreed to withdraw, with prejudice to their being re-filed, the disciplinary charges it brought against Angela.Ferlito. Id. at ¶ 12. James K. Eby, Esq. represented Angela Ferlito with respect to the accusatory instrument and the District charges. Dkt. No. 29, Eby Aff. at ¶ 2. Angela Ferlito paid $1,500 to Eby for services rendered. Dkt. No. 29, Statement of Services Rendered. The New York State United Teachers reimbursed Angela Ferlito for her attorney's fees and expenses in the amount of $1,500. Dkt. No. 29, New York State United Teachers Letter, September 12, 2002.

Citing budgetary constraints, in March of 2003, the District notified Angela Ferlito that it may discontinue her position for the 2003-04 school year. Dkt. No. 29, Letter to Angela Ferlito at ¶ 1, March 19, 2003. On June 4, 2003, the District informed Angela Ferlito that it would discontinue her employment as of July 1, 2003. Dkt. No. 29, Letter to Angela Ferlito, at ¶ 1, June 4, 2003. Angela Ferlito challenged, apparently unsuccessfully, her termination and has since been employed by the North Rose School District as a business teacher.

In their Second Amended Complaint, Plaintiffs allege several causes of action. Plaintiffs allege: (1) that the individual defendants acting in both their individual, with the exception of Zukovsky, and official capacities deprived Angela Ferlito of her constitutional rights in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3) and the New York State Constitution; (2) that Dehm and Smegelsky conspired to violate Angela Ferlito's constitutional rights when they prepared the criminal complaint against her; (3) a claim of false arrest against the City and Smegelsky; (4) a claim of defamation against the City and Smegelsky; (5) a claim for malicious prosecution against the City and Smegelsky; and (6) a claim on behalf of Angelo Ferlito against all Defendants for the loss of the society and services of his wife. Dkt. No. 22, Second Amended Compl. at ¶¶ 27-54. Plaintiffs seek compensatory damages, punitive damages and reasonable attorneys' fees. Id. at Wherefore Clause.

DISCUSSION

I. Summary Judgment Standard

The standard for summary judgment is well settled. Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure a just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed. 2d 265 (1991) (quoting Rule 1 of the Federal Rules of Civil Procedure). A court may grant a motion for summary judgment when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See Id.; United States v. Diebold Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See Anderson, 477 U.S. at 250-251, 106 S.Ct. at 2511.

II. 42 U.S.C. § 1983

Section 1983 provides a cause of action for the deprivation of any rights, immunities or privileges provided by the United States Constitution against law enforcement officers who abuse their power by substituting enmity for investigation. Abreu v. City of New York, 2006 WL 401651, at *4 (E.D.N.Y. February 22, 2006). When asserting a § 1983 claim, a plaintiff must prove that: (1) the challenged conduct was attributable at least in part to a person who was acting under the color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States. Breitbard v. Mitchell, 390 F.Supp.2d 237, 244-45 (E.D.N.Y. 2005) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).

A. Municipal Liability--the City

To establish liability under 42 U.S.C. § 1983 against a municipality for conduct by employees such as police officers, a plaintiff must show that the claimed constitutional violation resulted from a municipal custom or policy. See Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."). "Custom" denotes "persistent and widespread . . . practices," see Adickes v. S.H. Kress & Co., 398 U.S. 144, 167, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970), and thus "[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-34, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 79 (1985). The Supreme Court has also held that a single act taken by a municipal employee who, as a matter of state law, has final policymaking authority in the area in which the action was taken, constitutes a municipal policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Plaintiffs must allege "actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of [their] civil rights." Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y. 1996). Nonetheless, "[t]he fact that a particular official--even a policymaking official--has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable." Pembaur, 475 U.S. at 482-83, 106 S.Ct. at 1299-1300 (citation and footnotes omitted). In addition, there is no respondeat superior liability against a municipality under 42 U.S.C. § 1983 for conduct by employees below the policymaking level. Monell, 436 U.S. at 691-95; Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).

In attributing ยง 1983 liability to the City, Plaintiffs theorize that "Zukovsky was to some extent actively involved in the investigation and prosecution of the Plaintiff . . . ." Dkt. No. 33, Pls.' Mem. of Law at 17. Plaintiffs argue that Zukovsky, as the City's Chief of Police, "is the final decision maker for the City . . . relative to filing . . . criminal charges and making arrests within his jurisdiction." Id. at 18. Defendants argue that no "official ...


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