The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 ("section 1983") and New York State law. Her claims stem from an incident in which her adult son, who had recently moved out of her house, attempted to retrieve some of his belongings with the assistance of Officer Boisclair of the Glens Falls City Police Department. The complaint includes Fourth Amendment claims of warrantless entry, excessive force, and arrest without probable cause, as well as a First Amendment retaliation claim. Defendants move (Dkt. No. 19) for summary judgment. As set forth below, the Court grants the motion in part and denies it in part. The Court also issues a conditional preclusion order regarding plaintiff's psychologist's records.
The facts set forth herein are undisputed unless otherwise stated. Plaintiff's son Matthew Butler had lived in plaintiff's home for about three months, and had moved out on Saturday, March 7, 2009. On March 13, 2009, Matthew asked the Glens Falls Police Department to send an officer to be present when he returned to plaintiff's house to retrieve his belongings. When Matthew arrived at the house, plaintiff confronted him and said she was going to call the police. He responded that he already had done so, and that an officer was on his way. Plaintiff then telephoned the police department, which confirmed Matthew's statement.
Defendant Glens Falls Police Officer G. Joseph Boisclair*fn1
("Officer Boisclair") was dispatched to the residence to
mediate and maintain peace during the property removal. On arrival, he
spoke to both Matthew and plaintiff outside the residence in the
driveway. He learned that Matthew had been living there for a few
months, had moved out, and wanted to enter the residence to retrieve
his belongings. Matthew stated that he needed about an hour to obtain
his belongings. Officer Boisclair said that was too long, and Matthew
agreed that he could obtain necessary belongings, including his bed,
in about 15 minutes. Plaintiff went inside the residence.
Events after this point are in dispute. Officer Boisclair testified at his deposition on May 5, 2011, that, after talking to him and Matthew in the driveway, plaintiff went inside the house. Officer Boisclair stated that plaintiff then invited him to enter the house. He testified:
Q. How did you come to be in Ms. Butler's home?
A. She asked me to come inside the house.
A. At the time, when I went in, I didn't know. But when I got in the home, she advised me that she was on the phone with her daughter and her daughter wanted to talk to me.
Q. Did you speak with her daughter?
A. Because I didn't need to.
Officer Boisclair stated that while he was in the house, he remained in the area near the front door; and that after talking with plaintiff he attempted to leave the residence. He stated that plaintiff "had locked the door while [he] was inside the residence, preventing [him] from leaving." He further testified:
Q. Did you ever say, I am going to arrest you?
A. Again, I told your client on a couple different occasions, I advised her that the choices she was making could lead to her arrest.
A. Well, I had advised her that by intentionally denying somebody access to their property, she was in violation of Penal Law Section 155.25, which is petty larceny. You cannot intentionally deny somebody access to their property.
Q. You said choices, plural, that my client was making. What were some of the other things?
A. When your client had locked me in her house, I advised her that if she didn't open the door and let me out, that she could be arrested for obstructing governmental administration. At that point in time, she told me I was going to have to arrest her because she wasn't opening the door.
Q. Did my client give you a reason for locking you in her home?
A. She said I was just going to let her son in.
Q. How close were you from the door when my client allegedly locked the door of her home?
A. Probably about eight to ten feet.
Q. Where was my client standing?
A. Right next to the door.
A. I told her a couple of different times that she needed to open up the door.
A. When she refused, I went over and I unlocked the door and I opened it.
A. Your client fell down.
Q. Did the door strike her at that time?
Q. Do you know what caused my client to fall down?
Plaintiff gave her version of events in her New York General Municipal Law 50-h hearing on October 20, 2009. She testified as follows:
Q. What happens when the police officer gets there?
A. He starts talking to Matt. I went over to him and said, "You need to tell him to move his vehicle. I have a 6:30 appointment. And also his girlfriend does not belong here, he was told not to bring her on my property."
Q. So, you informed the police officer of that information that, one, you had to leave and, two, that his girlfriend wasn't welcome at your property; right?
Q. Where were you when you had that conversation?
A. In the driveway. *** A. ... I'm standing sort of close to the policeman saying, "He needs to leave now."
Q. And what happens next?
A. Um -- he says, "I'm going to talk to your son for awhile." I believe he said that to me. I went in the house, and I believe at that point I had Kim on the cell.
Q. And you were speaking to her about what was going on?
Q. Where does Kim live, or where did she live back in March if it's different?
A. She lives in North Miami Beach, Florida.
Q. And what did you and Kim discuss?
A. I told her that the policeman was here, Matthew was in the driveway, he wasn't doing anything about it. The policeman --
Q. When you say he's not doing anything about it, you're referring to the police officer is not doing anything about Matthew being there?
A. Getting off my property. And the policeman told me he had a right to be there. This was outside before I came in the house. Can we back up?
A. He said, "He has a right to be here, he's a resident." And I said, "He's not a resident, he moved out last weekend." And he said, "He's still a resident if he has property here." And I went in the house and I spoke to Kim. And then he knocked on my door -- ...