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Phelan v. Sullivan

July 7, 2010

KENNETH J. PHELAN, PLAINTIFF,
v.
CHUCK SULLIVAN, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent the above complaint to me for review. On June 21, 2010, pro se plaintiff, Kenneth J. Phelan, filed this civil rights action, pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis and a motion to appoint counsel. (Dkt. Nos. 1, 2, 3).

I. Complaint

A. Causes of Action

Plaintiff brings this action against Chuck Sullivan, New York State Police ("NYSP") Senior Investigator; Michael Reinohl, NYSP Investigator; Eric Leonard, NYSP Investigator; Ann Kostecki, NYSP Investigator; Jim Conway, NYSP Investigator; Matthew Rennerman, NYSP Officer; Nicole M. Lichva, NYSP Officer; Lynda K. Rymanowski, NYSP Officer; Harry Corbitt, Superintendent, NYSP; Robert Gavin, Times Union reporter; T. Tyler; R. Smith; Dean Delnegro, U.S. Immigration Agent; Judge Wagner, Albany City Court Judge; City of Albany; Christina Calabrese, Assistant District Attorney ("ADA"); and Nick Georgeadis, NYSP Investigator. (Compl. ¶ 3--18).*fn1 Plaintiff alleges twenty-two "causes of action" in his complaint: (1) "Defendants Reinohl, Sullivan, Kostecki, Georgeads [sic], Leonard, Renneman, [and] Conway committed treason by breaking their sacred oaths of office, by intentional[l]y breaking the laws and [r]ights contained in the Constitution of the United [States] of America, and trampling all over it"; (2) "Defendants Renohl, Sullivan, Kostecki, [and] Leonard violated [p]laintiff[']s 4th Ame[n]d[ment] [r]ight by illegally arrest[ing] him in his home without a warrant, and without exigent circumstances"; (3) "Defendants Reinohl, Sullivan, Kostecki, [and] Leonard unlawfully imprisoned [p]laintiff"; (4) "Defendants Reinohl, Sullivan, Kostecki, Leonard, Georgeads [sic], Renneman, [and] Conway showed deliberate indifference to [p]laintiff's [r]ights, multiple times"; (5) "Defendants Reinohl, Calibrese [sic], Sullivan, Georgeads [sic], Sullivan, and Leonard maliciously prosecuted [p]laintiff"; (6) "Defendants Reinohl, Leonard, Georgeads [sic], and Sullivan violated [p]laintiff's 4th Amend. [r]ight by unlawfully seizing property, multiple times"; (7) "Defendants Reinohl, Leonard, Georgeads [sic], Sullivan, Conway, and members of the Watervliet P.D. used excessive force during illegal arrest"; (8) "Defendants Reinohl, Georgeads [sic], Sullivan, [and] Leonard violated due process [r]ights of [p]laintiff, by unlawfully arresting and stealing [p]laintiff's property not authorized by warrant, multiple times"; (9) "Defendants Reinohl, Leonard, Conway, Sullivan, Kostecki, and Georgeads [sic] showed evil intent, and malicious intent towards [p]laintiff"; (10) "Defendants Lichva and Rymanowski violated [p]laintiff's 4th Amend. [r]ight by accepted [sic] stolen property"; (11) "Defendants Lichva and Rymanowski violated [p]laintiff's 4th Amend.

[r]ight by accepting stolen property"; (12) " S/A Delnegro violated [p]laintiff's due process [r]ights by sharing confidential information with defendant Reinohl, and broke HIPAA Laws, and equal protection rights"; (13) "Defendant Wagner violated

[p]laintiff's [r]ight to bail, by den[y]ing bail"; (14) "Defendant City of Albany illegally imprisoned [p]laintiff as a matter of routine and policy"; (15) "Defendant City of Albany was deliberately indifferent towards [p]laintiff by unlawfully taking away [p]laintiff's [r]ight to medical treatment for [a] severe migraine he got as a result of having his eye glasses taken away"; (16) "Defendant Gavin defamed and slander[e]d [p]laintiff's good name by writing and publishing a story about [p]laintiff in the Times Union newspaper full of lies and violating [p]laintiff's [r]ight to due process, and equal protection"; (17) "Defendant City of Albany violated [p]laintiff's due process [r]ights as routine policy, and equal protection"; (18) "Defendant Corbitt created a policy or custom under which these Constitutional violations took place and allowed them to continue and was grossly negligent in managing subordinates"; (19) "Defendant Reinohl maliciously prosecuted [p]laintiff for filing a false report, and three counts of Agg. harrassment [sic] even though defendant Reinohl had abolut[e]ly no evidence, and no probable cause to press these malicious and slanderious [sic] charges[, t]he [g]rand [j]ury did not indict on these charges[, d]efendant Reinohl was in pos[s]ession of a documented email from a P.I.,*fn2 addressed to [p]laintiff stating an immigrant, Jane Quinsaat, was using a stolen Social Security No. and date of birth[, p]laintiff mer[e]ly reported this in good faith to defendant Reinohl[, t]his email is proof [p]laintiff is not guilty of filing a false report[, d]efendant Reinohl maliciously hid this and filed these false charges against [p]laintiff with evil [i]intent"; (20) "Defendant Tyler defamed and slander[e]d [p]laintiff's good name by allowing a story about [p]laintiff that was 95% lies [sic] be printed in the Times Union newspaper and their website, violating [p]laintiff's 14th and 5th Amendment rights"; (21) "Defendant Smith defamed and slandered [p]laintiff by failing to properly supervise staff to ensure they follow policies, violating [p]laintiff's 14th Amend. right"; and (22) "Defendants violated [p]laintiff's Constitutional rights by coming to 'visit' [p]laintiff about case to threaten, harass, bagger [sic] [p]laintiff and to cause harm and write up [p]laintiff, to intimatate [sic] violating, 1st[,] 5th[,] 8th[,] and 14th Amendments." (Compl. ¶ 70c, pp. 22--27a).*fn3 Plaintiff requests declaratory relief, a judgment in his favor, billions of dollars in damages, injunctive relief of various kinds against various defendants, and attorney's fees plus costs. (Compl. ¶ 69, pp. 28--33).

B. Alleged Facts

Plaintiff alleges that on July 1, 2008, the Albany police investigated a complaint against plaintiff for sending "threatening emails" to Jane Quinsaats, and concluded that "no crime had been committed." (Compl. ¶ 21). Two weeks later, plaintiff alleges that defendant Conway and Kostecki used "false information" and "another man's arrest record and name" in their application for a search warrant. (Compl. ¶¶ 22--23). On July 17, 2008, plaintiff alleges that state police approached his apartment wearing bulletproof vests with their guns drawn. (Compl. ¶ 25). Defendants Reinohl, Leonard, Kostecki, Sullivan, Georgeadis, and Conway allegedly "picked the doorlock" of the apartment building and then knocked "only once" and broke down plaintiff's door with a battering ram. Id. Plaintiff, who was sitting on the couch, was tackled face-down, handcuffed, "read his [r]ights," and arrested. Id. When plaintiff asked why he was being arrested, defendant Sullivan responded that he was being arrested for "filing a false report, probably more," and that the arrest warrant was "at the station." (Compl. ¶ 26).

Plaintiff alleges that defendants Sullivan and Reinohl questioned him while defendants Leonard, Kostecki, Conway, and Georgeadis "ransacked" his apartment, after which they put him in the police car and took him to the state police barracks in Loudonville. (Compl. ¶¶ 27--30). Plaintiff also alleges that defendants Leonard, Georgeadis, and Conway exceeded the authority of the search warrant by seizing more than the "authorized computer related items" and "stole a lot more priv[a]te property," which was later in the possession of different defendants. (Compl. ¶¶ 31--33,36--38, 40--42, 44, 46, 48).*fn4 Plaintiff alleges that after he was "booked, photographed and fingerprinted," defendant Reinohl refused to allow plaintiff to call his attorney and "hid [p]laintiff's attorney's phone [number] from plaintiff" and "bribed" plaintiff with a soda and sandwich to talk. (Compl. ¶ 30). This interrogation was later the subject of a "false record" used against plaintiff at trial. (Compl. ¶ 58). Plaintiff asked to see the arrest warrant, and defendant Reinohl allegedly responded that "they don't need an arrest warrant to arrest you in your home." Id.

Later that night, plaintiff alleges that he was taken to the "South Station lockup," where defendant "City of Albany unlawfully imprisoned [p]laintiff and took away [p]laintiff's eyeglasses," causing him to get a "severe migraine" and was "not allowed medical treatment." (Compl. ¶ 34). Defendants Reinohl, Sullivan, and Kostecki allegedly did not "allow" plaintiff to see a judge before "unlawfully" imprisoning him. (Compl. ¶ 35).

Plaintiff appeared before Judge Wagner on July 18, 2008, and was arraigned on one count of Reporting a False Incident, one count of Criminal Contempt, four counts of Aggravated Harrassment, with Judge Wagner denying plaintiff's "[r]ight to bail. (Compl. ¶ 39). A few days later, on July 21, 2008, defendants Kostecki, Delnegro, and Reinohl "intercepted [p]laintiff's imigrant fiancée at Albany Airport... for no reason whatsoever, except to show evil intent towards [p]laintiff." (Compl. ¶ 43).

On July 23, 2008, plaintiff alleges defendant Reinohl "tampered" with plaintiff's rolodex (which had been previously seized as evidence), "fraudulently adding evidence." (Compl. ¶ 45). A few days later, on July 28, 2008, plaintiff alleges defendant Delnegro "violated HIPPA laws" and plaintiff's "due process [r]ights" when he agreed to get an original immigration application plaintiff sent to the U.S. Embassy in the Phillipines. (Compl. ¶ 47). Plaintiff alleges defendant Renneman, a supervisor, learned of the "false arrest, unlawful imprisonment, and malicious prosecution," of plaintiff when defendant Renneman received written reports from defendant Reinohl and "did nothing to stop the unconstitutional actions of defendants Reinohl, Sullivan, Leonard, Kostecki, Georgeads [sic], and Conway" because it was "policy or custom to allow violations of [constitutional] law." (Compl. ¶ 49, 57, 63). Defendant Corbitt also contributed to creating this policy or custom and allowed it to continue. (Compl. ¶ 66).

On August 4, 2008, plaintiff alleges another illegal search was conducted by defendant Reinohl, who stole property from plaintiff's home, and with defendant Georgeads [sic], authorized another investigator to search someone else's attic to "maliciously persecute [p]laintiff." (Compl. ¶¶ 50--51). Over the next two days, plaintiff alleges defendants Reinohl and Sullivan, in conjunction with the Saratoga Sheriff's Department, tried to connect plaintiff with the Christina White murder by using a newspaper article and other evidence "illegally seized" from plaintiff. (Compl. ¶ 52--53). This evidence was later in the possession of defendants Sullivan, Rymanowski, and Reinohl. (Compl. ¶¶ 54--56).

Plaintiff was indicted by a grand jury for "violating a fraudulent order of protection," two counts of first degree Criminal Contempt, one count of aggravated harassment, and stalking on September 18, 2008, after defendant Reinohl allegedly ignored exculpatory information from a private investigator and instead used "fraudulent evidence and testimony," a "fraudulent order of protection," and "fraudulent record of 'minutes' of intarigation [sic]." (Compl. ¶¶ 59--60. Plaintiff was later charged with identity theft in the first degree and brought again before a grand jury and confronted with "fraudulent information" on September 30, 2008.

Later, on February 5--7, 2009, defendants Calibrese [sic], Reinohl, and Georgads [sic] allegedly provided "fraudulent information" and "using stolen property from [p]laintiff's home" to maliciously prosecute plaintiff. (Compl. ¶ 64). Plaintiff alleges that one month later, defendant Gavin wrote a story in the Times Union newspaper that was "full of lies," "slanderis [sic]," and "defamitory [sic], which defendant Tyler printed, and defendant Smith permitted by failing to properly supervise staff at the newspaper." (Compl. ¶ 65, 68, 69).

C. Relief Requested

Plaintiff seeks billions of dollars in damages, attorneys fees of $200,580.00,*fn5 and broad declaratory and injunctive relief. ...


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