The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated of her First and Fourteenth Amendment rights. Specifically, plaintiff claims that defendants retaliated against her, violated her right to Equal Protection and subjected her to false arrest as a result of events that occurred on October 11, 2009.*fn1 In the complaint, plaintiff also asserts causes of action based upon New York state law for false arrest, abuse of process, prima facie tort, negligence and intentional infliction of emotional distress. Presently before the Court is defendants' motion for summary judgment. (Dkt. No. 24).
The facts herein are largely disputed. This cases arises out of
incidents that occurred on October 11, 2009. On October 11, 2009, at
approximately 12:00 a.m., plaintiff was with her boyfriend, Raymond
Lefco ("Lefco"), Jared LaChance ("LaChance"), Sara Uruskyj and others
at Saratoga City Tavern ("City Tavern"). Shortly after they arrived,
an incident took place on the fourth floor of City Tavern involving a
New York State Trooper, Kenneth Ahigian ("Ahigian"). The fourth floor
of City Tavern was crowded and loud. The parties and witnesses present
different accounts of what transpired in City Tavern.*fn3
Plaintiff claims that an altercation arose after Lefco
apologized to Ahigian for bumping into him. Plaintiff claims that
Ahigian identified himself as a state trooper and began uttering
threatening, offensive, obscene and abusive language directed towards
Lefco. Plaintiff contends that she stood between Lefco and Ahigian in
an attempt to diffuse the situation. Plaintiff claims that Ahigian
began yelling and calling her names
including "whore". Plaintiff claims that Ahigian pushed her with his
arm causing her to fall backward and to land on the floor.
Plaintiff claims that she got up from the floor and went down the staircase to the first floor of City Tavern. Plaintiff, Lefco, Uruskyj and others left City Tavern and Lefco placed a call to 911. Plaintiff claims that while they were outside, Ahigian approached the group and repeatedly told the group that they were going to be arrested. According to plaintiff, Ahigian continued to engage in threatening and abusive conduct. The parties agree that Ahigian told the party that he was a police officer and as Ahigian approached Lefco, plaintiff placed herself between the two men. Plaintiff claims that Ahigian then pushed her on the back of her head causing her to fall over a nearby fence.
Ahigian testified that Lefco intentionally "elbowed" him as he attempted to walk through the crowd on the fourth floor of City Tavern. Ahigian stated that Lefco cursed at him and the two men "screamed" at each other. Ahigian testified that plaintiff walked in their direction and pushed Ahigian while yelling "[g]et the fuck out of here". Ahigian responded and told plaintiff to get her hands off of him or that she would be arrested. According to Ahigian, plaintiff responded by cursing and pushed him again. Ahigian "swatted her hands" and then claims that Lefco punched him in the face. Ahigian also claims that LaChance jumped on him. Ahigian testified that City Tavern employees escorted all of them from the club. Ahigian admits that he followed Lefco and plaintiff onto Caroline Street and told them not to leave because they were going to be arrested. Ahigian testified that plaintiff cursed and that he cursed and that plaintiff pushed him again and told him to leave them alone. Ahigian claims that he "swatted" plaintiff's right hand.
In the early morning hours of October 11, 2009, the City of Saratoga Springs Police Department ("Police Department") received a call that a fight had broken out at City Tavern.
Sergeant Michael J. Welch ("Sgt. Welch") responded, with two to three other officers.*fn4 When Sgt. Welch arrived on the scene, City Tavern employees directed him to a group of people on Caroline Street. The group of people included plaintiff, Raymond Lefco, LaChance and Ahigian. Sgt. Welch observed Ahigian, dressed in plain clothes, with a bloody shirt and laceration over a partially closed left eye.When Sgt. Welch asked Ahigian what occurred, Ahigian told the officer that Lefco and LaChance assaulted him. Lefco admitted to punching Ahigian while at City Tavern. The police officers arrested Lefco and LaChance. Plaintiff was angry that Lefco was arrested and was advised by Sgt. Welch to "step back and calm down". Welch claims that plaintiff continued to "yell and swear" at him. Welch advised plaintiff that if she did not calm down, she would be arrested. Ahigian told Welch that plaintiff started the altercation and should also be arrested. Plaintiff was interviewed and told officers that Ahigian pushed her. Plaintiff was not arrested at the scene. Lefco was placed in handcuffs and transported to police headquarters. Ahigian left the scene for treatment for his injuries. The officers secured additional statements from witnesses at the scene including Blake Saunders, a security guard at City Tavern, Jeremy Meyers, an employee of Desperate Annies, and Vincent Perent, an employee of the Bullpen. Meyers stated that plaintiff was standing between Ahigian and Lefco while outside City Tavern. Saunders stated:
[t]wo minutes after midnight, I saw two white males raise their fists and take a combative stance facing a third white male later identified to be Ken Ahigian. They stepped towards Ken and he raised his hands in a defensive posture . . . As soon as Ken stepped out into the street the two aggressors yelled "Fuck you mother fucker" and they went after him again. I didn't see what started the altercation but Ahigian said a girl pushed him before the two men attacked him.
Plaintiff walked from the scene to the police station. Plaintiff signed a statement and asked that charges be filed against Ahigian.
Over the next four days, the police continued to investigate the incident and took ten witness statements. On October 13, 2009, plaintiff appeared at the police department, with counsel, to re-iterate her demand that charges be filed against Ahigian. Plaintiff claimed that she was injured in the altercation but did not realize it until the next day. Plaintiff's injuries were photographed and she was told to appear in City Court on October 14, 2009 to sign a complaint against Ahigian. On October 13, 2009, Ahigian appeared at the police department to execute a complaint against plaintiff. Ahigian spoke with Sgt. Welch regarding the charges and was advised that plaintiff would not be charged with assaulting an officer because Ahigian was off-duty at the time. Sgt. Welch prepared three complaints against plaintiff, which were sworn to by Ahigian, for obstructing governmental administration and second degree harassment. The same day, Sgt. Welch spoke with the District Attorney's office and discussed plaintiff's request for a complaint against Ahigian. Later that evening, Sgt. Welch telephoned plaintiff and stated that he did not intend to prepare a complaint for her signature that day and that he would "get back to her".
On October 14, 2009, plaintiff's counsel faxed a letter to Edward F. Moore, Chief of Police of the City of Saratoga Springs Police Department. Counsel claimed that plaintiff was assaulted and harassed by Ahigian and recounted plaintiff's request that charges be filed against Ahigian. Counsel provided the name of witnesses who could corroborate plaintiff's version of events. Counsel also stated:
At this point I find the entire situation very troubling as legitimate criminal victims are being denied their right to file criminal charges seemingly because the alleged defendant is a member of the New York State Police. It is further noteworthy that this alleged defendant was with his brother who is a member of your department who may have used his police status to prevent an arrest of his brother.
On October 14, 2009, Chief Moore responded to plaintiff's counsel and stated that it was his, "understanding from Sgt. Welch that he simply deferred the date of signing of any additional complaints from both sides of this incident until our officers have an opportunity to bring more clarity to this investigation, which is not yet completed".
On October 14, 2009, officers from the City of Saratoga Springs Police Department appeared at plaintiff's place of employment and presented plaintiff with an appearance ticket. According to plaintiff, the officers told her that she was required to appear in City Court the following day to be arrested, processed and to answer criminal charges.
On October 14, 2009, plaintiff filed a complaint with the New York State Police regarding Ahigian's conduct on October 11th. On January 28, 2010, the State Police determined the complaint to be "unfounded".
On March 4, 2010, the charges against plaintiff were adjourned in contemplation of dismissal in City Court for the City of Saratoga Springs, New York. On October 8, 2010, plaintiff filed a lawsuit in New York State Supreme Court against Ahigian alleging that Ahigian made false statements to the police concerning plaintiff. Plaintiff also claimed that she sustained physical and emotional injuries due to Ahigian's conduct.
While the state lawsuit was pending, plaintiff filed the within action against defendants claiming that they retaliated against her in violation of her First Amendment right to free speech, violated her right to equal protection and falsely arrested her in violation of her Fourth Amendment rights.
I. Summary Judgment Standard
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, reh. denied, 445 U.S. 920 (1980)). As such, for a plaintiff to recover in a section 1983 action, she must establish a causal connection between the acts or omissions of each defendant and any injury or damages she suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979)) (other citation omitted). Under § 1983, plaintiff asserts three claims: (1) First Amendment retaliation; (2) Equal Protection; and (3) False Arrest.
A. First Amendment Retaliation
Defendants argue that plaintiff's retaliation claim is subject to dismissal because plaintiff does not have a constitutional right to file criminal charges against another individual. Specifically, defendants argue that plaintiff's claim is erroneously based upon defendants' refusal to file charges against Ahigian despite plaintiff's continuing demands. Plaintiff argues that defendants misinterpret the basis for her retaliation claim. Plaintiff does not claim that she has a constitutional right to file charges against Ahigian. Rather, plaintiff claims that her First Amendment cause of action is based upon defendants' decision to initiate charges against plaintiff in retaliation for plaintiff's complaints against Ahigian.
In cases such as this, where a private citizen alleges that state actors took some action against her in retaliation for her exercise of her First Amendment rights, the plaintiff must satisfy the elements of a First Amendment retaliation claim set forth in Curley v. Vill. of Suffern, 268 F.3d 65 (2d Cir. 2001). Griffin-Nolan v. Providence Wash. Ins. Co., 2005 WL 1460424, at *6 -9 (N.D.N.Y. 2005). In Curley, during a political campaign, the plaintiff accused the police commissioner and police chief of covering up and failing to discipline the actions of another village police officer. Curley, 268 F.3d at 73. The plaintiff alleged that his arrest, a number of months after the election, was in retaliation for such criticism. Id. In considering the First Amendment claim, the court held that to prevail on this free speech claim, plaintiff must prove:
(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right. Curley, 268 F.3d at 73. In Curley, there was no dispute regarding the first element. Defendants' do not address these elements. Rather, defendants rely upon the argument that the officers had probable cause to arrest plaintiff.
1. Elements of Retaliation Claim
"[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Kerman v. City of New York, 261 F.3d 229, 241 -242 (2d Cir. 2001) (the plaintiff's right to criticize the police and threaten to sue without reprisal (taking him to Bellevue Hospital) clearly satisfied the first prong of this test) (citing City of Houston v. Hill, 482 U.S. 451, 461 (1987)). "Speech directed at police officers will be protected unless it is 'likely to produce a clear and present danger of a ...