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William G. Morse v. Patrick Fitzgerald

March 20, 2013


The opinion of the court was delivered by: Charles J. Siragusa United States District Jusdge



This is an action in which William Morse ("Plaintiff") alleges that the two defendant sheriff's deputies falsely arrested him and used excessive force during the arrest, thereby violating his federal constitutional rights and committing various torts under New York State law. Now before the Court are the parties' competing motions for summary judgment. For the reasons discussed below, both applications are granted in part and denied in part.


Unless otherwise noted, the following are the undisputed facts of this case. On or about March 21, 2008, Plaintiff issued a check in the amount of $665.34 to his fuel oil supplier, E&V Energy Co. ("E&V"). According to Plaintiff, E&V required him to issue the check before it would deliver fuel oil to his home. However, Plaintiff contends that it was understood that E&V would not actually cash the check, since his fuel oil bill was going to be paid by the government-funded Home Energy Assistance Program ("HEAP"). E&V delivered the fuel oil to Plaintiff's home, and he subsequently stopped payment on his check. On April 21, 2008, E&V notified Plaintiff that his check was returned by the bank for insufficient funds. Plaintiff contends, though, that E&V was not actually owed anything, since HEAP paid E&V for the fuel.

Nevertheless, on June 6, 2008, E&V contacted the Ontario County Sheriff's office to lodge a complaint against Plaintiff for the returned check. The same day, defendant Ontario County Deputy Sheriff Patrick Fitzgerald ("Fitzgerald") and Ontario County Deputy Sheriff Matthew Asquino ("Asquino") visited E&V in response to the complaint, and obtained a copy of Plaintiff's check and a "protest letter" from E&V.*fn2 At approximately 5:00 p.m. that day, Fitzgerald and Asquino drove their marked police vehicle to Plaintiff's home. At that time, Plaintiff was inside the house with his wife and children. The officers knocked, and Plaintiff went to the door, but remained inside the house behind a closed screen door. The officers spoke to Plaintiff through the screen door, and asked him to step outside, because they had received a complaint about a bad check. Plaintiff refused to come outside, but said that he was aware of the check complaint, and that he had paperwork refuting E&V's claim of non-payment. Specifically, Plaintiff claimed to have a statement showing a credit on his account. At that point, Fitzgerald told Asquino to stay with Plaintiff, and then walked back to his car to retrieve the cancelled check and protest letter from E&V. Plaintiff then turned from the screen door and went into his living room to look for his paperwork. While Plaintiff was doing that, Asquino opened the screen door and walked into Plaintiff's kitchen, uninvited, and stood there watching Plaintiff. Upon realizing that Asquino was inside the house, Plaintiff asked him why he was in the house, but Asquino did not respond or go back outside.*fn3 Upon locating his paperwork, Plaintiff walked back toward the door, and Asquino went back outside. Plaintiff remained inside the closed screen door.

Having returned to the house from the police car with the check and protest letter, Fitzgerald again asked Plaintiff to come outside. Plaintiff refused, and said that he knew that the officers could not arrest him at his home without a warrant. Fitzgerald responded that he was going to issue Plaintiff an appearance ticket, but Plaintiff said that he did not need to come outside for that, since Fitzgerald could hand the appearance ticket to him through a hole in the screen door. However, Fitzgerald said he would not do that. Consequently, Plaintiff terminated the conversation and began to close the solid inner door of his house. Fitzgerald then quickly opened the screen door, pushed open the solid inner door that Plaintiff was attempting to close, entered the kitchen and arrested Plaintiff. In that regard, upon pushing his way inside the house, Fitzgerald pushed Plaintiff forward over the kitchen table, applied an "arm bar" hold to Plaintiff's right arm, said, "You're going to jail now, buddy," and then walked Plaintiff out of the house and placed him in the back of the police car. Fitzgerald then remained outside of the police car, while Asquino, who sat inside the car, asked Plaintiff for pedigree information. Although Fitzgerald had stated that Plaintiff was "going to jail," Plaintiff's wife intervened and informed the officers that Plaintiff had previously been employed as an Ontario County Sheriff's deputy, at which point the officers issued Plaintiff an appearance ticket and released him. The entire incident, from the time the officers arrived until they left, lasted approximately thirty minutes.

Plaintiff maintains that the criminal charge against him for issuing a bad check was later dismissed.

Following the arrest, Plaintiff complained to the Ontario County Sheriff's Office and attempted to file criminal charges against Fitzgerald and Asquino. However, neither the Ontario County Sheriff, nor any other police agency that Plaintiff contacted, took action against Fitzgerald or Asquino. Apparently, though, in response to Plaintiff's complaint, Fitzgerald and Asquino each submitted an unsworn written statement about the arrest to the Ontario County Sheriff. See, "EBT Exhibits" 2B and 2C, dated September 4, 2008. Those unsworn written statements differ significantly from Plaintiff's sworn account in several respects. For example, the officers state that shortly after they arrived at Plaintiff's house, he invited both of them inside the house. Moreover, the officers both suggest that Plaintiff came outside the house to speak to them, and that they only used force against Plaintiff when he attempted to flee into his house. See, Asquino Stmt. ("At this point, Mr. Morse . . . made a sudden action to re-enter his home. Deputy Fitzgerald grabbed Mr. Morse by the arm and pulled him away from the front door to prevent him from re-entering the house.") (emphasis added); Fitzgerald Stmt. ("Mr. Morse then made a sudden move back into his house. I reached for him to prevent him from going back into the house. I placed his hands behind his back and advised him he was now under arrest.") (emphasis added). However, in connection with the instant motions, neither Fitzgerald nor Asquino submitted a sworn statement to challenge Plaintiff's version of events, and Defendants' Statement of Facts [#37-22] fails to cite any evidentiary proof in admissible form to support the officers' unsworn statements.*fn4 Consequently, the undisputed facts of record indicate that Plaintiff never stepped out his house until after he was placed under arrest.

On or about September 3, 2008, Plaintiff signed, and apparently served, a Notice of Claim pursuant to New York General Municipal Law 50-e against Ontario County. The Notice of Claim referenced claims for assault, battery, trespass, negligence, intentional infliction of emotional harm, prima facie tort, violation of civil rights, and conspiracy to violate constitutional rights under color of state law, arising from the arrest by Fitzgerald and Acusto on June 6, 2008. The Notice of Claim includes an allegation that during the arrest, Fitzgerald "force[d] Mr. Morse's arm behind his back causing injury to the rotator cup [sic] of the shoulder." See, Complaint [#1], attached Notice of Claim.

On June 7, 2010, Plaintiff commenced this action, proceeding pro se. The Complaint purported to state claims for "assault, battery, trespass, negligence, intentional infliction of emotional harm, prima facie tort, violation of civil rights, and conspiracy to violate constitutional rights under color of state law," against Ontario County, Fitzgerald and Asquino. Complaint [#1] p. 1. On June 24, 2010, this Court granted Plaintiff's application to proceed in forma pauperis, and dismissed the claim against Ontario County pursuant to 28 U.S.C. § 1915(e)(2).

On June 28, 2011, prior to the court-imposed deadlines for completing discovery, Plaintiff filed his subject motion for summary judgment. (Docket No. [#21]). The Court liberally construes the motion as seeking partial summary judgment as to liability on all claims. The Court held the motion in abeyance pending the completion of discovery and the filing of any dispositive motion by Defendants. See, Order [#26]. Following the completion of discovery, Defendants filed their subject motion [#37] for summary judgment.*fn5 Defendants argue, in pertinent part, that they are entitled to summary judgment on the false-arrest and excessive-force claims, since their actions in arresting Plaintiff near his doorway were "objectively reasonable" as a matter of law, and since the force they used during the arrest was "de minimis" as a matter of law. On these points, Defendants' motion does not rely on any affirmative sworn submissions from either Defendant, but instead, maintains that Defendants are entitled to summary judgment even assuming that the Court accepts the sworn statements of Plaintiff and his witnesses. Alternatively, Defendants maintain that they are entitled to qualified immunity. Defendants also contend that Plaintiff's state-law claims are time barred. On February 28, 2013, Plaintiff, appearing pro se, and Defendants' counsel, appeared before the undersigned for oral argument of the motion.


Rule 56

Summary judgment may not be granted unless "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). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).

The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).

Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

Section 1983 Claims

The Court liberally construes the Complaint to alleged, pursuant to Section 1983, that Defendants violated Plaintiff's Fourth Amendment rights in three respects: 1) by entering his house; 2) by arresting him without a warrant; and 3) by using excessive force during the arrest. "In order to state a cause of action under 42 U.S.C. ยง 1983, a plaintiff must allege that some person acting under color of state law deprived him of a federal right." Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986). Asquino's physical entry into Plaintiff's home Liberally construing Morse's Complaint, he maintains that Asquino violated his Fourth Amendment rights, by conducting an illegal "search" of the house, when he physically entered Plaintiff's home without permission, as Plaintiff was retrieving documentation. Specifically, Plaintiff indicates that Asquino opened the screen door, entered the house, walked through the kitchen area, and watched Plaintiff as he located the paperwork. On this point, in general, [t]he Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, ...

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