The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM--DECISION and ORDER
Plaintiff Kenneth J. Phelan ("plaintiff" or "Phelan") filed this civil rights action on June 21, 2010, asserting twenty-two causes of action pursuant to 42 U.S.C. § 1983 against seventeen defendants. After reviewing the complaint and considering plaintiff's in forma pauperis application, United States Magistrate Judge Andrew T. Baxter submitted a Report--Recommendation urging dismissal of nine defendants and numerous causes of action. Phelan v. Sullivan, 2010 WL 2948217, at *9 (N.D.N.Y. July 7, 2010). This Report--Recommendation was adopted in its entirety. Phelan v. Sullivan, 2010 WL 2948188, at *1 (N.D.N.Y. July 22, 2010) (noting that no objections to the Report--Recommendation had been filed).
The remaining eight defendants include the following members of the New York State Police ("NYSP"): Chuck Sullivan, Senior Investigator ("Sullivan"); Michael Reinoehl, Investigator ("Reinoehl"); Eric Leonard, Investigator ("Leonard"); Ann Kostecki, Investigator ("Kostecki"); Jim Conway, Investigator ("Conway"); Nick Georgeadis, Investigator ("Georgeadis"); Matthew Rennerman, Major ("Rennerman"); and John P. Melville, Acting Superintendent (collectively "defendants"). The parties apparently agree that the only remaining causes of action are false arrest, excessive force, and illegal seizure of personal property-all arising from Phelan's arrest and the seizure of his property on July 17, 2008.
Indeed, these are the only three claims addressed in plaintiff's memorandum of law.
Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes and has filed a cross-motion for summary judgment. Defendants have responded. The motions were considered on submit.
Unless otherwise noted, the following pertinent facts are undisputed. On July 11, 2008, the New York State Governor's office forwarded a complaint to the NYSP. The complaint had been submitted via email by a person named "Kevin Phelps," who alleged that a Jane Quinsaats ("Jane") was in the United States illegally and requested an inquiry into her immigration status. Reinoehl began an investigation and quickly learned that Jane had a valid New York driver's license, a valid Social Security number, and was legally in the United States. Reinoehl also learned that Jane had recently obtained an order of protection against Kenneth Phelan as a result of a harassment charge in Albany.
Further investigation revealed that the email address used to send the complaint to the Governor's office was linked to Phelan. On July 14, 2008, Reinoehl sent an email to this email address requesting a conversation and, shortly thereafter, received a phone call from a man claiming to be Kevin Phelps. Reinoehl recorded part of the conversation, in which the man repeated the allegations against Jane.
Reinoehl then discovered a website maintained by an organization called "Citizens Against Illegal Immigrants," which named Jane as an illegal resident of Albany using a stolen identity. The president of this organization was listed as "Ken Butler," and a picture of him appeared on the organization's website. Leonard, who was personally familiar with plaintiff, identified the man in the picture as Phelan. On July 15, 2008, Reinoehl interviewed Jane, who reported that plaintiff had stalked her in the past and had recently sent her an email threatening to have her deported. She further claimed that an unidentified person using an unfamiliar email address had sent two threatening emails to her on July 1, 2008-the same day she was granted an order of protection against plaintiff. Jane also identified Phelan as both the voice on the "Kevin Phelps" recorded phone call and the man in the "Ken Butler" picture.
In the meantime, Kostecki, Leonard, and Conway completed a criminal history check on Phelan and reportedly learned that he had been arrested in Colonie, New York, in 2002. The arrest report indicated that plaintiff had threatened someone with a dagger, kicked an officer, and attempted to pull the service weapon from the holster of another officer. The records also revealed that when Phelan was arrested in Colonie, he provided the police with an assumed name of a deceased California man and the social security number of a New Hampshire man. Plaintiff denies this criminal history.
On July 17, 2008, Reinoehl obtained a search warrant, signed by a City of Watervliet Judge, for Phelan's residence. On that same date the warrant was executed by Reinoehl, Leonard, Kostecki, Sullivan, Georgeadis, Conway, and members of the Watervliet Police Department. Defendants acknowledge using force to open the door to plaintiff's apartment but claim that they first identified themselves, advised that they had a search warrant, and repeatedly asked plaintiff to open the door. Plaintiff alleges that defendants broke the door down without any warning. Phelan was found sitting on the couch approximately six to ten feet away from the front door. Plaintiff alleges that he was then forcibly thrown to the floor, several officers put their feet and knees to his back, and his arms were painfully twisted behind his back. Plaintiff was handcuffed and advised of his Miranda rights.*fn2
Reinoehl then interviewed Phelan, who admitted to emailing the complaint to the Governor's office under the name Kevin Phelps. Defendants proceeded to search the home and seized various items. Defendants assert that plaintiff consented to a further search of his home, beyond the scope of the search warrant. Phelan disputes this and claims that he only agreed to permit the seizure of his passport, some knives, and a hairbrush. Elsewhere in his motion paperwork, however, Phelan denies that he authorized the search and seizure of any additional places or items, and he maintains that his signature on a voluntary consent to search form is a forgery.
Phelan was placed under arrest and transported to the Albany Police Department. The following day he was arraigned on charges of criminal contempt of an order of protection, aggravated harassment, and falsely reporting an incident. According to defendants, a suppression hearing was conducted in December 2008, and an Albany County Court judge ruled that plaintiff's statements and all items seized from his home were admissible at trial. In January 2009 Phelan was found guilty of criminal contempt of an order of protection, aggravated harassment, and stalking, and was ...