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Razzano v. County of Nassau

September 22, 2009

GABRIEL RAZZANO, PLAINTIFF,
v.
COUNTY OF NASSAU, POLICE COMMISSIONER LAWRENCE W. MULVEY, SALVATORE MISTRETTA, WILLIAM LEMIEX AND ANTHONY ROCCO, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

ORDER

I. INTRODUCTION

On September 19, 2008, Plaintiff Gabriel Razzano ("Plaintiff" or "Razzano") filed a Second Amended Complaint [DE 77] against Defendants County of Nassau; the Nassau County Police Department ("NCPD"); Police Commissioner Lawrence W. Mulvey, Police Officers Alfred Samaniego, Salvatore Mistretta, William Lemieux, and Anthony Rocco (together, "NCPD Defendants"); United States Representative Carolyn McCarthy ("McCarthy"); and Mary Ellen Mendelsohn ("Mendelsohn") (collectively, "Defendants"), alleging, inter alia, that Defendants are liable under 42 U.S.C. § 1983 for violations of his First and Fourteenth Amendment rights.

By Memorandum of Decision and Order dated February 14, 2009 [DE 112], the Honorable Arthur D. Spatt granted, in part, Defendants' various motions to dismiss. Pursuant to Judge Spatt's decision, the Second Amended Complaint [DE 77] was dismissed in its entirety as to the NCPD, Detective Samaniego, Representative McCarthy, and Ms. Mendelsohn. Judge Spatt further ordered that (1) Counts I, II, VI, VII, and VIII were dismissed as to Nassau County and the NCPD Defendants, and (2) Plaintiff be granted leave to amend the Second Amended Complaint "to reflect that he complied with the notice of claim requirement and to amplify his allegations pertaining to Nassau County's policy and the role of the NCPD Defendants in implementing or executing that policy . . . ." DE 112.*fn1 Thus, Plaintiffs' remaining claims are Count III (violation of Plaintiff's Fourteenth Amendment rights for failure to provide proper notice and opportunity for a hearing subsequent to the seizure of Plaintiff's long arms), Count IV (conversion for seizing Plaintiff's long arms without due process), and Count V (replevin stemming from the seizure of Plaintiff's long arms without providing compensation there for), against Defendants Nassau County and the NCPD Defendants, excluding Detective Samaniego.

Currently before the Court are three motions filed by Plaintiff and one motion filed by Defendants McCarthy and Mendelsohn, all of which pertain to pretrial discovery. Each of these motions is discussed in turn below.

II. FACTUAL BACKGROUND

The following is a summary of the facts relevant to the discovery motions discussed below. These facts are drawn from Judge Spatt's Order on the Motions to Dismiss [DE 112] and the Second Amended Complaint [DE 77]. Plaintiff is a member of the Minutemen Civil Defense Corps, an organization that purports to be concerned with securing "the borders and coastal boundaries of the United States . . . against the unlawful and unauthorized entry of all individuals, contraband, and foreign military." Plaintiff alleges that between March 2002 and March 2007, he wrote at least fifteen letters to Representative McCarthy regarding his views on illegal immigration. Plaintiff further alleges that during this period, he was one of Representative McCarthy's constituents.

Beginning in early 2003, Plaintiff began writing to Representative McCarthy about the increasing number of undocumented persons living in his community. Representative McCarthy responded to several of Plaintiff's letters and forwarded to his attention several letters which she had written to the United States Department of Homeland Security and United States Immigration and Customs Enforcement regarding his concerns. Plaintiff also contends that he had several conversations about this issue with James (Jim) Hart, Representative McCarthy's former chief of staff.

Plaintiff asserts that in early March 2007, he called Representative McCarthy's office in order to reach Jim Hart. On being informed that Hart no longer worked for Representative McCarthy, Plaintiff requested a return call from the new chief of staff. Plaintiff alleges that on March 12, 2007, he traveled to Representative McCarthy's Long Island office to request an appointment with her, but was told that he was not a member of her congressional district and that he should cease communications with her office.

On March 19, 2007, Plaintiff returned to Representative McCarthy's office to seek an appointment, but was again told that he was not one of her constituents and that he should inquire with the Nassau County Board of Elections to clarify any confusion about his appropriate congressional district. Plaintiff alleges that on the same day, he went to the offices of the Nassau County Board of Elections where he was provided with a Certificate of Registration which indicated that he was a member of Representative McCarthy's district.*fn2 Plaintiff immediately returned to Representative McCarthy's office with the intention of requesting an appointment to discuss illegal immigration issues. According to Plaintiff, while he was waiting in the reception area of Representative McCarthy's office, he was approached by Detective Alfred Samaniego of the NCPD who informed Plaintiff that he was not a member of Representative McCarthy' s district, that he should leave the office and stop "annoying" Representative McCarthy, and that he should not contact her office until he straightened this "entire situation out." Second Amended Complaint ("Compl.") [DE 77] ¶ 29.

Plaintiff alleges that Detective Samaniego then escorted him out of Representative McCarthy's office and into the elevator. Plaintiff further claims that upon exiting the elevator, he and Detective Samaniego encountered Representative McCarthy and Plaintiff said "Ms. McCarthy, I have been trying to meet with you." Compl. ¶ 31. Representative McCarthy ignored Plaintiff and proceeded into the elevator, while Detective Samaniego escorted Plaintiff out of the building. According to Plaintiff, later on the same day, he received a phone call from Detective Samaniego who stated that the Nassau County Board of Elections had erred in telling Plaintiff that he was a member of Representative McCarthy's district and that he should cease all communications with the Congresswoman and her staff.*fn3

According to Plaintiff, on the following day, March 20, 2007, he received a phone call from his mother who stated that NCPD officers Salvatore Mistretta and William Lemieux were at his home to confiscate his nine rifles and fifteen handguns. Officers Mistretta and Lemieux allegedly informed Plaintiff that the weapons were being seized because the NCPD had received a 911 call in which Plaintiff's name was mentioned and, under such circumstances, it was NCPD policy to seize all firearms for a 90-day "cooling" period. Compl. ¶ 35. Plaintiff contends that this 911 call, if it occurred, was made by Mary Ellen Mendelsohn, a member of Representative McCarthy's staff. One week later, Plaintiff received a receipt for the seized weapons.

According to Plaintiff, he subsequently received a letter dated April 2, 2007 from the Board of Elections which stated that his address had been assigned to an incorrect election district that and that he was, in fact, not a constituent of Representative McCarthy's district.*fn4

Plaintiff alleges that he also received a letter dated April 24, 2007, in which the NCPD Chief stated that Plaintiff's license to carry a weapon had been revoked based upon the NCPD's review of the March 19, 2009 incident at Representative McCarthy's office.*fn5 The letter also noted that Plaintiff had become "increasingly obsessed with the day laborer situation," and that Plaintiff's ...


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