The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Geneva Finigan ("plaintiff" or "Ms. Finigan") brings this action against defendant William E. Marshall ("defendant" or "Deputy Marshall"), in his individual and official capacities. Plaintiff asserts two distinct causes of action: first, false arrest in violation of 42 U.S.C. § 1983 and the Fourth Amendment; and second, abuse of process in violation of § 1983 and the Fourth Amendment. Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Plaintiff opposes but does not cross-move for liability as a matter of law on the false arrest claim. Oral argument was heard via video conference on January 4, 2007, in Utica and Albany, New York. Decision was reserved.
In 1975, plaintiff married Robert Finigan ("Mr. Finigan"). Together they had two children. In or around 1988, Mr. and Ms. Finigan purchased a house located at 365 North Hudson Avenue, Stillwater, New York ("the residence"). They both held title to the residence. In April 2003, plaintiff separated from Mr. Finigan and moved out of the residence, taking with her only one bag of belongings. No formal separation agreement ever existed between the parties. In October 2003, plaintiff formally commenced a divorce action against her husband.
On or about December 21, 2003, plaintiff learned that Mr. Finigan planned to celebrate the holidays at their son's house in North Carolina, and thus would not be at the residence during this time. Ms. Finigan decided this would be a good time to retrieve some of her belongings from the residence, but before doing so she called her attorney and asked if this was permissible. Her attorney told her it was permissible since there was no court order preventing her from entering the jointly owned residence. On December 24, Ms. Finigan went to the residence to retrieve her personal belongings. As of this date, there had been no equitable distribution of the marital property. Plaintiff knew that Mr. Finigan had changed the locks since she moved out, so upon her arrival she called a locksmith. When the locksmith arrived, plaintiff told him that she lost her keys and showed him her driver's license which listed "365 North Hudson Avenue" as her home address. The locksmith opened the basement. Plaintiff entered the residence and removed several items, including some ornaments from the Christmas tree that were given to her as gifts. She left the residence after approximately one hour, but left the basement door unlocked so that she could return at a later date to retrieve more items.
On the morning of December 26, plaintiff returned with several members of her family and began removing additional items from the residence. At some point thereafter, Deputy Marshall received a 911 poll from the New York State Police dispatcher of a burglary in progress at 365 North Hudson Avenue, Stillwater, New York. When defendant arrived at the scene approximately eighteen minutes later, he recognized the residence as that of the Finigans. Because Stillwater is a small community, defendant had general knowledge of the Finigans' divorce action and knew that plaintiff no longer lived at the residence. Defendant saw plaintiff's brother, whom he recognized, and asked him what he was doing there. Plaintiff's brother told him they were there to get some of Ms. Finigan's belongings. Ms. Finigan was not there at that time because she had made a trip to the house of her friend, Maureen Forsythe ("Ms. Forsythe"), to unload some of the items retrieved from the residence. Plaintiff's brother called her and told her to return as soon as possible because Deputy Marshall was there to arrest her.
Before plaintiff returned, Mr. Finigan's brother-in-law and Deputy Marshall's close friend, Robert Wood ("Mr. Wood"), arrived at the scene. Mr. Wood informed Deputy Marshall that he was watching the residence while Mr. Finigan was away. He told defendant that Mr. Finigan had changed the locks and that he did not know how plaintiff gained access to the residence. Mr. Wood also told defendant that Ms. Finigan "wasn't supposed to be on the property." (Marshall Dep. 43, Oct. 5, 2006).
When Ms. Finigan returned to the scene, Deputy Marshall asked what was going on and she told him she was removing her property from the residence. She also told him that her attorney said this was permissible. Deputy Marshall then told plaintiff to get into the back of his marked sheriff's car. Defendant, who was wearing his uniform and carrying his firearm at the time, opened the door and plaintiff got into the car of her own volition. She was not placed in handcuffs. Before taking her to the station, plaintiff was allowed to exit the car to retrieve her mobile phone. En route to the station, plaintiff asked where they were going and defendant told her they were going to the Stillwater police station. She then called Ms. Forsythe with her mobile phone and told her that she had been arrested. Upon arriving at the police station, Deputy Marshall seated Ms. Finigan in a chair next to his desk whereupon he read to her the Miranda rights. Defendant then asked her why she was at the residence removing property. She told him that she was simply retrieving her belongings. She further told him she was legally entitled to go to the residence and retrieve her belongings because there was no court order prohibiting her from engaging in such activity. She again told defendant that her attorney said that this action was permissible. When defendant asked how she gained access to the residence, plaintiff told him she employed the services of a locksmith. When defendant began asking questions about her divorce, plaintiff said she wanted to speak with her attorney. Plaintiff was allowed to use her mobile phone to call Ms. Forsythe. She told Ms. Forsythe that she had been arrested and needed her attorney's telephone number. While plaintiff waited for Ms. Forsythe to call her back with the number, defendant informed plaintiff that if she didn't return all of the property that she had removed from the residence he would arrest her and all of her family members when he returned to work the following Monday. He also told her that any attorney who told her it was permissible to go into the residence and remove property was stupid. Ms. Forsythe called and provided plaintiff with her attorney's number; however, plaintiff was unable to reach her attorney.
Deputy Marshall then drove plaintiff in his sheriff's car back to the residence. However, when they arrived at the residence it was apparent that everyone had already left the scene, so defendant began driving plaintiff back to the police station. En route to the police station, defendant pulled into the parking lot of a convenience store located in the center of town and went inside. Ms. Finigan remained in the backseat of the car with her head down fearing that her neighbors might see her. Defendant emerged with a beverage shortly thereafter. Realizing that her sister lived nearby, plaintiff asked defendant if he could take her to her sister's house instead of the police station. Defendant agreed and took plaintiff to her sister's house.
No charges were ever filed against Ms. Finigan.
Prior to the events of December 26, 2003, Ms. Finigan had been going to counseling for depression. After the events of that day, she continued to go to counseling and also began taking prescribed medication for anxiety. She claims that the post-event counseling and anti-anxiety medication were required in part because of the events of December 26, 2003.