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Daniel W. Barber v. Timothy J. Ruzzo

October 19, 2011

DANIEL W. BARBER, PLAINTIFF,
v.
TIMOTHY J. RUZZO, MARGARET L. MCMULLEN, AND MICHAEL SPITZ, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Daniel W. Barber commenced this action against defendants Timothy J. Ruzzo, Margaret L. McMullen, and Michael Spitz, asserting claims pursuant to 42 U.S.C. § 1983 for unlawful detention, illegal search, malicious prosecution, and restricting free speech in violation of the First and Fourth Amendments of the United States Constitution. (See Compl. ¶ 1, Dkt. No. 1.) Pending are defendants' motion to dismiss and Barber's motion to supplement his pleadings. (Dkt. Nos. 8, 13.) For the reasons that follow, defendants' motion to dismiss is granted in part, denied in part, and Barber's motion is denied as moot.

II. Background*fn1

Plaintiff Daniel W. Barber, a former employee of the New York State Department of Correctional Services, was arrested at his home on May 3, 2007 by defendant Timothy J. Ruzzo, an investigator with New York State Police Department. (See Compl. ¶¶ 7, 31, Dkt. No. 1.) Although he did not know the four officers who accompanied Ruzzo, Barber and Ruzzo had a history together. (Id. ¶ 21.)

In June 2001, Ruzzo was involved in the investigation and arrest of four plumbers who were doing work at the Coxsackie Correctional Facility.

(Id. ¶ 19.) During the course of the investigation, Barber, a correctional officer at Coxsackie, "refused directions by a supervisor to make false statements in an incident report concerning" the plumbers. (Id. ¶ 20.) As a result of Ruzzo's investigation,Barber was "charged with a Notice of Discipline" and eventually terminated on October 5, 2001. (Id. ¶ 21.)

Approximately six years later, Ruzzo was contacted by defendant Michael Spitz, a Lieutenant at Coxsackie, about a postcard that Barber sent to Coxsackie. (Id. ¶¶ 27-28.) The postcard, which Barber mailed on April 28, 2007, was received by defendant Margaret L. McMullen, a mail and supply clerk at Coxsackie, on May 2. (Id. ¶¶ 23-25.) McMullen felt the language on the postcard was "threatening" and forwarded it to Spitz, her watch commander. (Id. ¶ 25.) Although the postcard was addressed generically to "the Captain," it stated, in relevant part, that Barber was fired six years earlier and that "hell is coming for justice." (Id. ¶¶ 24-26.)

On May 3, 2007, Ruzzo "swore out a criminal information . . . charging [Barber] with aggravated harassment in the second degree." (Id. ¶ 28.) Ruzzo then proceeded to Barber's home, arrested him while he was outside, and ordered an unauthorized search of his home. (Id. ¶¶ 32-36.) That same day, Ruzzo transported Barber to the Catskill Town Court for arraignment. (Id. ¶ 38.) During the arraignment, Ruzzo "suggested" that Barber "should be incarcerated and subjected to a mental health evaluation"; he further recommended that an order of protection be issued against Barber. (Id. ¶ 39.)

Justice Robert Carl agreed with Ruzzo, and remanded Barber to the Greene County Jail pending a mental health evaluation. (Id. ¶ 40.) He also issued a temporary Order of Protection against Barber that remained effective until August 3, 2007. Five days later, Barber appeared before Justice Roberg, Coxsackie Town Justice, and " was released on his recognizance." (Id. ¶¶ 42-43.) Notwithstanding his release, Barber was ordered to submit to a mental health evaluation. (Id. ¶ 44.) The evaluation was completed by the Green County Mental Health Center, who, in a report dated May 25, 2007, found no evidence of any mental health diseases. (Id. ¶ 45.) Although the prosecution persisted for another year, Justice Roberg dismissed the complaint on July 21, 2008 after finding that, as a matter of law, the postcard was non-threatening. (Id. ¶ 47.)

Barber now alleges five causes of action against the defendants in their official and individual capacities: (1) illegal detention; (2) unlawful search; (3) malicious prosecution; (4) illegal imprisonment and malicious prosecution arising out of the mental health evaluation; and (5) a violation of his right to free speech. (Id. ¶¶ 48-135.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Ellis v. Cohen & ...


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