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Patrick Lenhard and Ann Lenhard v. Eric R. Dinallo

September 30, 2011


The opinion of the court was delivered by: Neal P. Mccurn, Senior District Judge

Memorandum, Decision, and Order

I. Introduction

Presently before the court in this civil rights action is a motion by defendants for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs oppose the motion. Decision on the pending motion is based entirely on the submitted papers, without oral argument. For the reasons that follow, defendants' motion is GRANTED.

II. Background

Plaintiffs are Patrick Lenhard and Ann Lenhard (collectively "Plaintiffs"). They bring this civil rights action pursuant to 42 U.S.C. § 1983, alleging claims under the United States Constitution as well as the New York State constitution and common law, stemming from their arrest for insurance fraud in March 2007. Defendants are Philip J. D'Angelo ("D'Angelo"), Sean M. Ralph ("Ralph"), and Eric R. Dinallo ("Dinallo") (collectively "Defendants"). Defendants are employees of the New York State Insurance Department ("NYSID"), which is not a party to this action.

This court previously granted in part and denied in part a motion to dismiss several of the causes of action set forth in the amended complaint. See Lenhard v. Dinallo, No. 1:08-cv-0165, 2009 WL 890596 (N.D.N.Y. Mar. 31, 2009). See also Dkt. No. 25. Presently remaining for adjudication are (1) Plaintiffs' claim for false arrest against all Defendants pursuant to the Fourth Amendment as well as the New York State constitution and common law; and (2) Plaintiffs' claim for malicious prosecution against D'Angelo and Ralph pursuant to New York common law.

Familiarity with the facts and procedural history of this case is presumed. See Lenhard, 2009 WL 890596, at *1-3. Following, those facts and any additional facts taken from the parties' submissions on the pending motion are discussed only as necessary to clarify this court's findings.

III. Discussion

A. Summary Judgment Standard

A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The movant has the initial burden to show why it is entitled to summary judgment. See Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden shifts to the non-movant to identify evidence in the record that creates a genuine issue of material fact. See id. at 273 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)). A party's factual assertions must be supported by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(c)(1).

When deciding whether a material issue of fact is in dispute, the court is cognizant that "[a] fact is material when it might affect the outcome of the suit under governing law." Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010) (internal citation omitted). Also, a material fact is genuinely in dispute "if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986)).

"In ruling on a motion for summary judgment, the district court may rely on any material that would be admissible or usable at trial." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation and citation omitted). When deciding a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in the non-movant's favor. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598 (1970)). However, a properly supported summary judgment motion "will not be defeated merely upon a 'metaphysical doubt' concerning the facts . . . or on the basis of conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586)).

B. 42 U.S.C. § 1983 Generally

In order to establish a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show "(1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state . . . law." Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920 (1980) (internal quotations omitted)). "Section 1983 is not itself a source of substantive rights[,] but merely provides a method for vindicating federal rights elsewhere conferred[.]" Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689 (1979)).

To establish a § 1983 claim against a government official in his individual capacity, a plaintiff need only "show that the official, acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 362 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985)). The government official, for his part, may assert the personal immunity defense of qualified immunity. See id.

In this case, it is undisputable that Defendants were acting under color of state law when they took the alleged unconstitutional actions.

1. Dinallo's Personal Involvement*fn1

A prerequisite to an award of damages on a § 1983 claim against an individual is the personal involvement of the individual in the alleged unconstitutional deprivation. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (citations omitted). To prevail, the plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Where a defendant is a supervisory official, as is Dinallo here, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his personal involvement in that unlawful conduct. Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445 (1981). See also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). A plaintiff may establish the personal involvement of a supervisor by showing that the supervisor

(1) directly participated in the violation, (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated.

Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)) (rev'd on other grounds, Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009)).

Here, Dinallo states by sworn declaration that he "had no personal involvement in the investigation or prosecution of the [P]laintiffs," and that he "had no direct supervision over . . . D'Angelo or . . . Ralph." Decl. of Eric R. Dinallo, Oct. 21, 2010, at ¶ 4, Dkt. No. 48-6 ("Dinallo Decl."). In opposing Defendants' motion for summary judgment, Plaintiffs argue that Dinallo, in his capacity as "acting Superintendent of [NYSID] at the time of the investigation, . . . was [NYSID's] chief administrator and responsible for the general workings of the entire department." Pls.' Resp. to Defs.' Statement of Material Facts, at ¶¶ 59, 61. Dkt. No. 50-4 ("Pls.' SOMF"). Plaintiffs, however, do not cite to anything in the record to support this proposition. But even if the proposition were true, it is nothing more than an attempt to premise Dinallo's liability under the doctrine of respondeat superior. This court previously rejected an earlier attempt by Plaintiffs to premise Dinallo's liability under the doctrine of respondeat superior because respondeat superior is not a basis for liability under § 1983. See Lenhard, 2009 WL 890596, at *7.

Rather than citing to any admissible evidence in the record to show Dinallo's personal involvement, Plaintiffs argue that Dinallo has not been deposed and claim that they are "entitled to further discovery on the issue of . . . Dinallo's personal involvement." Pls.' SOMF ¶¶ 59, 61. On April 2, 2010, the Honorable Randolph F. Treece, United States Magistrate Judge, amended the scheduling order by setting a new discovery deadline as September 15, 2010, and the final day to file dispositive motions as October 22, 2010. See Dkt. No. 43.*fn2 Judge Treece's Order also ...

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