The opinion of the court was delivered by: Conner, Sr. D.J.
Copies E-Mailed to Counsel of Record
Plaintiff, Sofia Saenz, brings this action under 42 U.S.C. § 1983 against defendants Edward Lucas ("Lucas"), Vincent Mussolino ("Mussolino"), Richard Light ("Light"), Mark DiGiacomo ("DiGiacomo"), Police Officer Jane Doe ("Doe") and the Town/Village of Harrison, New York (the "Town"), alleging that defendants violated her rights under the Fourth Amendment of the United States Constitution. Defendants Lucas, DiGiacomo and the Town moved to dismiss the claim against them pursuant to FED. R. CIV. P. 12(b)(6).
For the following reasons, defendants' motion is denied.
Plaintiff alleges the following in her Amended Complaint.
On August 20, 2007 plaintiff witnessed an incident between her then boyfriend, Joshua D. Clark ("Clark"), and her former boyfriend, Ralph Tancredi ("Tancredi"), during which Clark threatened to strike Tancredi with a baseball bat. (Am. Complt. ¶ 8.) Two responding police officers observed Clark with the bat and by radio informed Police Captain Anthony Marraccini ("Marraccini") that Clark was threatening Tancredi. (Id. ¶ 9.) Marraccini made it clear that he intended to charge Tancredi and not Clark. (Id.) Plaintiff alleges that Marraccini has a personal animus toward Tancredi because Tancredi filed federal civil rights actions against him and the Town Police Department, Tancredi expressed concern that he and the Chief of Police engaged in felonies with respect to members of the Department and Tancredi expressed concern that he forged a check intended for the Police Benevolent Association (the "PBA"). (Id.)
Plaintiff was transported to Police Headquarters from the scene and officers Mussolino and Doe detained her in a room for approximately three hours in an attempt to coerce her to bear witness against Tancredi. (Id. ¶ 10.) Plaintiff alleges defendants did this to retaliate against Tancredi for having filed the civil rights actions and that the retaliatory conduct was known to and condoned by members of the Town Board of Police Commissioners (the "Town Board"). (Id.) Plaintiff did not consent to this detention and made it clear to the officers that she had no interest in assisting in the retaliatory plan. (Id. ¶ 11.)
Several days later Mussolino came to plaintiff's residence and attempted to coerce her to sign paperwork for issuance of a temporary order of protection in her favor against Tancredi. (Id. ¶ 12.) Plaintiff refused and Mussolino directed her to call Assistant District Attorney Barbara Eggenhauser ("Eggenhauser"). (Id.) Eggenhauser directed plaintiff to report to the District Attorney's Office where Eggenhauser advised her that, if she did not agree to an order of protection, Clark would "get in trouble." (Id. ¶¶ 13-14.) Plaintiff continued to refuse to agree to the order of protection. (Id. ¶ 15.)
Eggenhauser summoned plaintiff to her office again and, acting in concert with Officer Lucas and Detective Light, instructed plaintiff that she had been "abused" by Tancredi and questioned her about alleged cocaine use by Tancredi. (Id. ¶ 16.) Light falsely advised plaintiff that Tancredi referred to her as a "coke whore," and Lucas advised her that Tancredi had stolen money from the PBA. (Id. ¶¶ 17-18.) Eggenhauser, Light and Lucas then threatened to seek to have plaintiff deported if she did not cooperate with them against Tancredi (plaintiff is of Peruvian national origin.) (Id. ¶¶ 3, 19.)
Plaintiff was brought to Tancredi's court appearance and subsequently Light, on the pretext that he would driver her to her residence, drove her to Police Headquarters and placed her in a room and interrogated her about Tancredi. (Id. ¶ 20.) Plaintiff protested her confinement, stating that she wanted to leave and did not "want to be part of this." (Id.) Officers Lucas and DiGiacomo joined Light in the room with plaintiff and further interrogated her, suggesting that Tancredi was involved in illegal gambling operations. (Id. ¶ 21.) Plaintiff again protested that she wanted to go home, and in response Lucas told her "go with the order of protection -- you're in with us." (Id.)
Plaintiff filed this action on February 12, 2008 claiming defendants violated her rights under the Fourth Amendment because she did not consent to her confinements at Police Headquarters and in Eggenhauser's office, she was aware of the confinements, there was no probable cause or arguable probable cause to detain her and the detentions were not otherwise privileged or authorized. Defendants Lucas and DiGiacomo move to dismiss the claim against them because there is no indication in the Complaint that they arrested or confined plaintiff. The Town moved to ...