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Aretakis v. Durivage

February 3, 2009

JOHN A. ARETAKIS, PLAINTIFF,
v.
ROBERT DURIVAGE, TIMOTHY NUGENT, TOWN OF NORTH GREENBUSH, AND ROBERT D. WELLS, DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

MEMORANDUM-DECISION and ORDER

TABLE OF CONTENTS

I. BACKGROUND ......................................................... 4-11

A. September 6, 2005 Incident ........................................... 4-7

1. Robert Wells's "Abbreviated" Version of the Events .................. 5-6

2. John Aretakis's "Abbreviated" Version of the Events ................. 6-7

B. Town of North Greenbush Police Department Investigation .................. 7-9

C. Appointment of the Special Prosecutor and the Criminal Trial ............... 9-10

D. Commencement of this Litigation ..................................... 10-11

II. ANALYSIS ........................................................... 11-66

A. Motion to Dismiss Standard ......................................... 12-13

B. Summary Judgment Standard ........................................ 13-15

C. False Arrest, Malicious Prosecution, and Constitutional Violations .......... 15-29

1. False Arrest ................................................ 16-17

2. Probable Cause ............................................. 17-26

3. Malicious Prosecution ........................................ 26-29

D. Intentional Infliction of Emotional Distress ............................. 29-31

E. Special Prosecutor Nugent and Absolute Immunity ....................... 31-40

F. Second Cause of Action............................................. 40-52

1. Title VII of the Civil Rights Act of 1964 .......................... 41-42

2. Due Process Pursuant to the Fourteenth Amendment ................ 42-43

3. First Amendment Rights ...................................... 43-45

4. Equal Protection of the Law ................................... 45-47

5. Conspiracy ................................................. 47-52

G. Municipal Liability -- Failure to Supervise, Failure to Train, and Policy and Practicy ............................................ 52-62

1. Rensselaer County and Nugent ................................. 54-57

2. Town of North Greenbush ..................................... 57-62

H. Sixth Cause of Action -- Durivage's and Nugent's Negligence .............. 63-64

I. Sundry of Other Legal Issues ......................................... 64-66

III. CONCLUSION ........................................................ 67-68

On June 5, 2007, pro se Plaintiff, John A. Aretakis, Esq., commenced a civil rights action, pursuant to 42 U.S.C. § 1983, against Police Officer Robert Durivage, Special Prosecutor Timothy Nugent, Esq., the Town of North Greenbush, and Robert D. Wells, alleging that his constitutional rights were violated when he was arrested on September 16, 2005, and prosecuted in the North Greenbush Town Court on two misdemeanors. Dkt. Nos. 1, Compl. & 5, Am. Compl. Challenging Aretakis's claims are three motions to dismiss and, in the alternative, two motions for summary judgment. The pending dispositive motions are listed as follows: (1) Defendant Wells's Motion to Dismiss*fn2 pursuant to FED. R. CIV. P. 12(b)(6); (2) Defendants Durivage's and the Town of North Greenbush's Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(6), as well as Motion for Summary Judgment, pursuant to FED. R. CIV. P. 56;*fn3 and (3) Defendant Nugent's Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(6) as well as a Motion for Summary Judgment, pursuant to FED. R. CIV. P. 56.*fn4 Aretakis opposes each Motion. Dkt. No. 62.*fn5 In turn, only Defendants Wells and Nugent filed Replies to Aretakis's Opposition. Dkt. Nos. 66 and 68.*fn6

I. BACKGROUND

The Court has reviewed very carefully the lengthy Amended Complaint and the disputed Material Statements of Facts. Although the parties' respective narrations may diverge, particularly as to the interpretation of actual events as well as the numerous contentions and inferences thereof, there is still a core set of facts upon which we may be able to analyze the stated claims for relief.

Regrettably, this core set of facts defies a brief recitation because of the divergent interpretations.

A. September 6, 2005 Incident

In order to appreciate the chain of events that commenced on September 6, 2005, and the underlying nature of this litigation, we must first gain an appreciation of the persona of Attorney Aretakis. Over the years, Aretakis represented scores of people who have claimed to be victims of clergy sexual abuse. These types of claims, as well as Aretakis himself, have captured widespread media exposure over the last several years, especially within the Northern District of New York. Aretakis has served as an advocate on behalf of this high profile group and has been involved extensively in litigation against the Roman Catholic Diocese of Albany.

On September 6, 2005, Robert A. Wells, a process server, was assigned to serve a Summons and Complaint from the Albany Catholic Diocese upon Aretakis. Am. Compl. at ¶ 17. It was anticipated that Aretakis would be served in the Town of North Greenbush. See infra Part I.D (discussion on court jurisdiction). For the purposes of these motions, we will accept as true that Aretakis was returning from New York City to attend to his family, particularly his wife who had called to advise him that she was being taken to the hospital, possibly because of a cardiac event. Am Compl. at ¶ 25. After securing his son but prior to rendezvousing with his parents, who were awaiting him at another location in order to transfer custody of his son to them while he traveled to the hospital to visit with his wife, Wells and Aretakis had an altercation. Aretakis claims that Wells pursued him from his house until they both stopped their vehicle in a school parking lot. See generally Dkt. No. 53-4 & 53-5, (Exs. B-1 & B-2); John A. Aretakis, Dep., dated Feb. 7, 2007, at pp. 28-64. Here the version of events differ dramatically.

1. Robert Wells's "Abbreviated" Version of the Events

Both Robert and Rosemary Wells aver in separate Affidavits, which were attached to criminal complaints filed against Aretakis, that Robert, who had served papers upon Aretakis in the past, was attempting to serve him once again. When he recognized Aretakis's car, Wells followed him until they both stopped in a traffic circle on school grounds. Wells swears that as he was exiting his vehicle Aretakis was driving towards him and he believed that Aretakis was going to ram him so he jumped back into his car. When Aretakis's car came to rest, Wells eventually got out of his car and approached Aretakis's car and placed legal papers on the hood of that car. He then told Aretakis that he had been legally served. As he was returning to his car, Aretakis got out of his car and approached Wells's vehicle. Wells then avers that John Aretakis then came to my car and grabbed the drivers side window and door. He then tried to shake the window and door and attempted to open the door. He was trying to reach in my vehicle. He was calling me an asshole and saying that he would kick my ass. I yelled for my wife to call 911 for help. Then I told him [to] go ahead hit me and then I will have you arrested. At this point he was waist deep inside my car trying to get my car keys out of the ignition. He was screaming and yelling. I then said, I will get out of the car and I will let you hit me. I didn't even get out of the car. I noticed that he opened the back driver's side of my car door. He then went inside my back seat and started to grab items from my back seat. I said to him what the hell are you doing? He took my black leather pouch briefcase with handles. It contained summons, affidavits and legal documents. He took my checkbook from citizens [sic] Bank. Dkt. No. 53, Ex. A., Robert Wells Dep., dated Sept. 6, 2005.*fn7

Eventually, Wells and his wife were interviewed by Officer Durivage in Officer Jus's presence. Those interviews were reduced to sworn statements, which were made a part of Criminal Informations that were filed against Aretakis for Harassment in the Second Degree in violation of New York Penal Law § 240.26(1) and Petty Larceny in violation of New York Penal Law § 155.25, and further served as a basis for a warrant of arrest. See Dkt. No. 53, Ex. B., Criminal Informations and Warrant of Arrest.

2. John Aretakis's "Abbreviated" Version of the Events

As stated above, Aretakis was making arrangements to visit his wife, who was hospitalized, as well as making child care arrangement with his parents. While traveling to meet his parents, there came a point in time when he realized that he was being followed by another vehicle. He pulled into the Gardner Dickinson Grade School parking lot followed by Wells. At some point Wells approached Aretakis's car with something in his hands and he eventually placed a big white package on Aretakis's windshield, saying something to the effect that he had been served and then swore at him. Aretakis then demanded some identification. Believing Wells had business cards on his car dash, Aretakis reached into the front window of Wells's car. Upon Aretakis reaching into his vehicle, Wells placed his hand on Aretakis's hand as if to deflect his efforts and during the course of that struggle someone shut off the ignition of the car. Then Aretakis leaned into the back seat of the driver side window of Wells's car and gained a hold of a "file folder" or a briefcase, as he continued to look for Wells's identification. Wells was screaming to his wife to call 911. Somehow the car window was rolled up and Aretakis was pinned in the window. Aretakis eventually extricated himself from the window before Wells drove off, but when he did Aretakis had the "billfold" in his hands. Aretakis dropped the "billfold" or briefcase on the grass alongside the pavement of the parking lot. Eventually, Aretakis left the scene and met up with his parents. While speaking with his parents, he recalled Mrs. Wells attempting to call 911 and then told them that there were some materials left on the ground near the school and asked his mother to retrieve it, which she did. Later, Aretakis went to his parents' home and retrieved the "billfold." Dkt. No. 53-4, Exs. B-1 & B-2, John A. Aretakis, Dep., dated Feb. 7, 2007, at pp. 28-64; Dkt. No. 62-3, Aretakis Aff., at ¶¶ 6-11.

B. Town of North Greenbush Police Department Investigation

Mrs. Wells made a 911 call to police during the incident and North Greenbush Police Officer Jus arrived on the scene. Later that day, Defendant Durivage assumed responsibility for the investigation of this matter. Aretakis Aff. at ¶ 12; Dkt. No. 52-3, Robert J. Durivage Aff., dated Mar. 14, 2008, at ¶ 2; see also Am. Compl. at ¶¶ 41, 59-61, & 81. That same evening, Wells expressed a desire to file charges against Aretakis and Officers Durivage and Jus took sworn statements from Mr. and Mrs. Wells. Durivage Aff. at ¶ 3. Durivage may have typed the statements and Jus acted as a witness to the Mr. and Mrs. Wells's execution of their respective signed statements. See Dkt. No. 52, Exs. C-4. Mr. & Mrs. Wells's Sworn Statements. In sum, Mr. and Mrs. Wells's sworn statements accused Aretakis of harassment and petty larceny. Id.; Durivage Aff. at ¶¶ 4-6; see also Am. Compl. at ¶ 26.

That same evening, Durivage contacted Aretakis by telephone and discussed the incident with him. Durivage Aff. at ¶¶ 6 & 7. In fact, over the next couple of days, Durivage and Aretakis spoke several times about the incident. Aretakis Dep. at p. 67. During their conversation on September 7, 2005, Durivage advised Aretakis to bring Wells's property to the police department. Durivage Aff. at ¶ 7. On September 7th, at approximately 7:43 p.m., Aretakis brought Wells's briefcase to the police station and left it with the Dispatcher, Officer Littlefield. Id. at ¶ 8; Dkt. No. 52, Ex. C-6, Adam J. Littlefield Dep., dated Sept. 7, 2005. Upon recovering the briefcase, Durivage called Wells, who reiterated that he wanted to pursue charges against Aretakis. Durivage Aff. at ¶ 9.

Criminal Informations were prepared accusing Aretakis of violating New York State Penal Law § 240.26(1), Harassment in the Second Degree, and § 155.25, Petty Larceny, and, on September 9th, Wells reviewed and signed the Informations under the penalty of perjury. Durivage Aff. at ¶ 10; Dkt. No. 52, Exs. C-2 & C-3, The Informations. On September 14, 2005, the Informations and supporting depositions were submitted to the Town of North Greenbush Justice for a warrant of arrest. On September 15, 2008, the Honorable Andrew G. Ceresia, the Town Justice, issued the warrant for Aretakis's arrest. Durivage Aff. at ¶¶ 11 & 12; Dkt. No. 52, Ex. C-1, Warrant of Arrest. On that same day, Durivage contacted Aretakis and advised him of the warrant and provided him with an opportunity to turn himself in voluntarily. On September 16, 2005, Aretakis appeared, was processed, and arraigned on the charges.*fn8 See Am. Compl. at ¶ 107. He was eventually released on his own recognizance. Durivage Aff. at ¶¶ 13 &14.

C. Appointment of the Special Prosecutor and the Criminal Trial

The Rensselaer County District Attorney disqualified her office from prosecuting this matter because Aretakis was a victim in another matter being handled by her office. Upon determining that the disqualification was appropriate, the Honorable Thomas B. Canfield, New York Supreme Court Justice, pursuant to New York County Law § 701(1)(d), appointed Defendant Nugent to act as a Special District Attorney regarding the criminal prosecution of Aretakis. Dkt. No. 53, Ex. C, Order, dated Oct. 13, 2005; Dkt. No. 53-7, Timothy Nugent, Esq., Aff., dated Mar. 13, 2008, at ¶ 6.*fn9 Immediately thereafter, Aretakis filed a motion with the Honorable Andrew Ceresia, Town of North Greenbush Justice, seeking his recusal from presiding over this criminal prosecution. Justice Ceresia granted the motion and recused himself. Dkt. No. 62-5, Nia Cholakis Aff., dated May 30, 2008, at ¶ 28.*fn10 In his stead, the Honorable Paul G. Toomey, Town Justice for the Town of Sand Lake, was appointed to preside over this criminal prosecution.

Omnibus Motions were filed, which included a Motion to Dismiss. The Motion to Dismiss was denied. Nugent Aff. at ¶ 7; Dkt. No. 53, Ex. D, Order, dated May 27, 2008. This matter went to trial and Aretakis represented himself. After five days of trial, on June 9, 2006, Aretakis was acquitted of both charges. Id. at ¶ 8; see Am. Compl. at ¶ 174.

D. Commencement of this Litigation

On September 5, 2006, Aretakis filed a Notice of Claim, pursuant to New York Municipal Law § 50-e, accusing Defendants of malicious prosecution, false arrest, and violations of his constitutional rights, among other violations and offenses. Dkt. No. 52, Ex. D, Notice of Claim.

Pursuant to Municipal Law § 50-h, Aretakis submitted to a deposition on February 7, 2007. Thereafter, on June 8, 2007, Aretakis commenced this action in the United States District Court for the Southern District of New York, presumably asserting that his official residence was within that District. Dkt. No. 1, Compl. On October 9, 2007, Aretakis filed an Amended Complaint, Dkt. No. 5, to which each Defendant filed an Answer, Dkt. Nos. 7, 37, & 40.

A Motion to Dismiss, pursuant to FED. R. CIV. P. 12(b)(3), for improper venue as well as a Cross Motion to disqualify Wells's Attorney were filed with the Honorable Shira A. Scheindlin, United States District Judge for the Southern District of New York . See generally Dkt. Nos. 18-20, 22, 23, & 26. By an Order, dated November 30, 2007, Judge Scheindlin transferred this case to the Northern District of New York, along with all other pending motions. Dkt. No. 33.

Aretakis brings this action, pursuant to 42 U.S.C. § 1983, alleging that his civil rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution were violated, as well state tort claims of false arrest, malicious prosecution, negligence, and intentional infliction of emotional distress. What is problematic with the Amended Complaint, among other things, is that it is not a model of conciseness, precision, nor clarity as required by FED. R. CIV. P. 6. For example, when identifying a particular cause of action, elements of other causes of action are randomly stated therein, making it difficult to discern what cause of action is actually being identified. Such pleading methodology is aptly described as a "shotgun" pleading wherein the facts and elements are scattered about the complaint. Nonetheless, we suspect that the causes of action pled in Aretakis's Amended Complaint against these Defendants, jointly and severally, may be stated as follows: Cause of Action Paragraphs Nature First ¶¶ 89-112 Intentional Infliction of Emotional Distress Second ¶¶ 113-135 Violation of Plaintiff's First Amendment right of free speech and other constitutional rights as well as Title VII of the Civil Rights Act of 1964 for discrimination based upon his religion, his work, and his outspoken criticism of the Catholic Church. See ¶ 114.

Third ¶¶ 136-150 Violation of Plaintiff's Fourth and Fourteenth

Amendment rights for failure to properly train police officers.

Fourth ¶¶ 151-162 Failure to properly supervise police officers. Fifth ¶¶ 163-174 False arrest, malicious prosecution, and violation of Plaintiff's civil rights.

Sixth ¶¶ 175-182 Negligence

Seventh ¶¶ 183-188 Violation of Plaintiff's First Amendment rights by hindering and chilling the Plaintiff's free speech rights.

In addition to denying the allegations, Wells has pleaded the affirmative defense of statute of limitations, failure to state a cause of action, and two counterclaims which state different theories of emotional distress. Dkt. No. 37, Wells Am. Ans. Durivage, as well as denying the allegations, pled the affirmative defenses of statute of limitations, the existence of probable cause, failure to state a cause of action, qualified immunity, and failure to comply with New York State General Municipal Law. Dkt. No. 40, Durivage Am. Ans. Likewise, Defendant Nugent denied the allegations and pled ...


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