The opinion of the court was delivered by: Neal P. McCurn, Senior United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Eric Whalen ("plaintiff") brings this pro se action against the City of Syracuse, New York ("City"), Police Officer S.H. Marte ("Marte"), and John Does 1 through 20 ("Does") (collectively, ("defendants") for an alleged violation of plaintiff's civil rights pursuant to 42 U.S.C. §1983. Currently before the court is defendants' motion for summary judgment (Doc. No. 66). For the reasons set forth below, defendants' motion will be granted in its entirety.
I. Facts and Procedural History
Plaintiff filed his original complaint on March 3, 2008. In a prior order dated April 8, 2008, this court adopted the magistrate judge's report and recommendation (Doc. No. 4) and dismissed plaintiff's complaint for failure to state a claim, directing plaintiff to file an amended complaint within 30 days (Doc. No. 6). On May 5, 2008, plaintiff filed his first amended complaint (Doc. No. 7). Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on July 24, 2008 (Doc. No. 22). In this court's June 3, 2009 decision on defendants' motion to dismiss (Doc. No. 36), the court set forth the following facts:
In the amended complaint, plaintiff asserts the following: Plaintiff is a resident of Syracuse, New York. On October 4, 2007, plaintiff called the non-emergency telephone number for the Syracuse Police Department ("SPD"). Plaintiff claimed that defendants John Does 1through 20 ("Doe") were illegally conducting "surreptitious electronic surveillance of plaintiff and disclos[ing] personal information". Defendant S.H. Marte ("Marte") responded to plaintiff's call. Plaintiff alleges that when Marte arrived, plaintiff began to explain his situation. Plaintiff contends that Marte immediately asked plaintiff about psychiatric medication and made other statements inferring that plaintiff's suspicions were due to mental illness without being told of any "mental health diagnosis". Plaintiff claims that Marte did not investigate the matter or prepare a report.
Plaintiff's first cause of action alleges violations of the Equal Protection Clause pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Marte was "acting under the color of state law and pursuant to the customs of defendant SPD" when he arrived at plaintiff's apartment. Plaintiff further claims that he was, "similarly situated to other [sic] who receive protection from defendant SPD in similar matters". Plaintiff contends that Marte was motivated by animus and should have known that his actions would violate plaintiff's constitutional rights. With regard to the City of Syracuse ("the City") and the SPD, plaintiff alleges: "If it were not for the actions and lack of action on the part of the Defendants City of Syracuse, SPD and Officer S.H. Marte, the plaintiffs deprivation of constitutional rights would not have occurred."
In the second cause of action, plaintiff alleges that defendants' actions caused him to suffer extreme emotional distress, humiliation and anguish. Plaintiff seeks compensatory and punitive damages. Doc. No. 36, p. 2-3.
In its Memorandum Decision and Order ("MDO"), the court dismissed all claims against the City and the SPD, as well as all claims against Marte in his official capacity. The defendants remaining in the case are Marte in his individual capacity and John Does 1 through 20. Currently before the court is the remaining defendants' motion for summary judgment.
A. 42 U.S.C.A. § 1983 Generally
In order to prevail on a claim under 42 U.S.C.A. § 1983, a plaintiff
must establish the violation of a right secured by the Constitution and
laws of the United States, and that the violation was committed by a
person acting under color of state law. In this case, all claims
against Marte in his official capacity were dismissed, and the
identity of Does 1 through 20, assuming, arguendo, that they exist,
remains unknown. Therefore, no remaining defendants were acting under
color of state law. Consequently, plaintiff's allegations of violation
of his civil rights pursuant to §1983 fails as a matter of law.
Accordingly, plaintiff's Equal Protection claim fails.*fn1
Due to plaintiff's pro se status, however, the court will
address the merits of the case.*fn2
B. Motion for Summary Judgment
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82 (2d Cir. 2004). "[I]n assessing the record to determine whether there is a genuine issue as to a material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought[.]" See Security Ins., 391 F.3d at 83, citing Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505 (1986). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), citing Anderson, 477 U.S. at 250-51.
While the initial burden of demonstrating the absence of a genuine issue of material fact falls upon the moving party, once that burden is met, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," see Koch v. Town of Brattleboro, Vermont, 287 F.3d 162, 165 (2d Cir. 2002), (citing Fed. R. Civ. P. 56(c)), by a showing sufficient to establish the existence of every element essential to the party's case, and on which that party will bear the burden ...