Office of Peter M. Hobaica, LLC, B. BROOKS BENSON, ESQ., Utica, NY.
Golden Law Firm, LAWRENCE GOLDEN, ESQ., Utica, NY, Fof the Plaintiff.
Murphy, Burns Law Firm, THOMAS K. MURPHY, ESQ., Albany, NY, For the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff Stephanie Flagler commenced this action against defendants Matthew E. Trainor and the County of Fulton, New York ("the County"), alleging a host of claims pursuant to 42 U.S.C. § 1983 against Trainor in his individual capacity, and New York law against Trainor and the County. (Compl. ¶¶ 1, 35-72, Dkt. No. 1.) Pending is defendants' motion for summary judgment. For the reasons that follow, the motion is granted.
In fall 2006, Flagler testified before a grand jury related to the prosecution of her on-again, off-again boyfriend, Brandon Becker, who was accused of, among other things, violating an order of protection that required him to refrain from assaulting, stalking, or harassing her. (SF: 19, 22, 33; MT: 27, 29-30, 46; Dkt. No. 46, Attach. 8 ¶¶ 4, 6.) At about the same time, another criminal case was pending against Becker related to his violation of an order of protection imposed for the benefit of his ex-wife, Jamie Becker. (MT: 34; Dkt. No. 46, Attach. 8 ¶ 5.) On January 5, 2007, Trainor, the Fulton County assistant district attorney prosecuting Becker in both cases, met with Flagler to discuss a letter he received in conjunction with a motion to dismiss the indictment filed by Becker in the first of his two pending criminal cases. (MT: 11-13, 17, 50-51; Dkt. No. 46, Attach. 8 ¶ 6.) That letter, which was signed by Flagler, notarized, and came into being at the behest of Becker, expressed her intent to no longer pursue the criminal charges against Becker, and, moreover, "to drop the order of protection." (Defs.' Statement of Material Facts (SMF) ¶ 5, Dkt. No. 46, Attach. 1; Dkt. No. 46, Attach. 6.) During their meeting, Flagler admitted to signing the letter, but explained that she did not wish the charges to be dropped, and also wanted the order of protection to remain in place. (MT: 51.)
Trainor claims that in the ensuing months, up until March 6, 2007, he "made numerous attempts to contact... Flagler, leaving several voice messages on her cell phone." (Dkt. No. 46, Attach. 8 ¶ 9.) Becker's trial was scheduled in February to begin on March 12, which prompted Trainor to prepare a subpoena to secure Flagler's presence at trial. (MT: 54, 59.) Trainor also contends that, at some point in February, he learned from Jamie that Flagler and Becker "were back together, in violation of the [o]rder of [p]rotection." (Dkt. No. 46, Attach. 8 ¶ 10.) Based on that information, Trainor alleges that he did not believe that Flagler was staying at her apartment in Utica, New York, but was, instead, staying with Becker in Gloversville, New York. (MT: 62-64.) Trainor instructed investigator Ben Close with the district attorney's office to attempt to serve Flagler at Becker's address in Gloversville. (MT: 66-67; BC: 64; Dkt. No. 46, Attach.
8 ¶¶ 11-12.) Close was unable to serve the subpoena. (BC: 54-55.)
At some point in February and early March, Jamie provided additional information to Trainor that "Becker might be trying to influence Flagler to not appear and testify at the trial, " and that Flagler had plans to travel to Georgia, leaving March 5 and returning March 12. (Dkt. No. 46, Attach. 8 ¶ 14.) Trainor claims that he placed a telephone call to Flagler at the end of February 2007, and left her a voice message explaining that he needed to serve her with a subpoena. (MT: 89-90; SF: 43; Defs.' SMF ¶ 2.) According to Trainor, he further explained that Flagler needed to return his call and arrange for service of the subpoena, or he would be forced to seek a material witness order (MWO) to secure her attendance at Becker's trial. (MT: 89-90.) Flagler denies that Trainor warned her about the MWO at any time. (SF: 49.) Trainor made additional calls to Flagler over the next several days. (Defs.' SMF ¶ 2; SF: 45-47; MT: 53, 57.) On March 1, Trainor obtained an MWO, which he provided to the Utica Police Department (UPD) for execution. (MT: 69-70, 90-91.)
On March 6, Trainor received a call from Becker's criminal defense attorney, who told him that he and Flagler had just spoke, and that she told him she would be present at trial to testify. (MT: 108-09.) Minutes later, Flagler phoned Trainor and told him she would be at trial, but that she was unable to meet to accept service of the subpoena before departing for her planned trip to Georgia. (MT: 93-94, 109-12.) After hanging up with Flagler, Trainor called the UPD to find out whether any attempts had been made by an officer to serve the subpoena, but no one answered and he left a message asking for someone to return his call. (MT: 113-14.) According to Trainor, after he left his office for the evening, and unbeknownst to him until after the MWO was executed, Flagler faxed a letter to the district attorney's office expressing her intention to appear for trial. (MT: 116-18.)
1. Flagler's Cellular Telephone
On the morning of March 7, Trainor learned that the MWO had been executed, and that Flagler was in custody. (MT: 118.) She was brought to court for arraignment later that day, and a judge appointed an attorney to represent her and remanded her. (MT: 121-23.) Flagler gave her cellular telephone (hereinafter "cell phone") to her aunt at some point that day before her intake at the Fulton County Correctional Facility. (MT: 146; Dkt. No. 46, Attach. 5; Defs.' SMF ¶ 18.) The following day, Flagler was brought before the presiding judge for a hearing, at which time Trainor withdrew the MWO on Flagler's aunt's promise to procure Flagler's presence at trial the following Monday. (MT: 137-38, 146.) At the hearing, the aunt also provided Flagler's cell phone to investigator Close upon request of Trainor. (MT: 147-49.) According to Trainor, Close locked the cell phone in his desk, and Trainor never had physical possession of it. (MT: 152-53, 158.)
Trainor explained in his deposition that the cell phone was of interest to him because he had already obtained telephone records for Becker that indicated he was calling Flagler's phone in violation of the order of protection, and that there was a chance that he would have Flagler's phone analyzed in contemplation of bringing new charges against Becker. (MT: 152; Defs.' SMF ¶ 4.) After the prosecution of Becker related to Jamie concluded in mid to late summer, Trainor admits that he had no more need for Flagler's cell phone. (MT: 157.) Trainor also concedes that Flagler requested the return of her cell phone on March 8 and "a number of [other] times, " but not after the case involving Jamie was concluded. (MT: 149, 156-57.) The cell phone was ultimately returned to Flagler in February 2008. (Defs.' SMF ¶ 19.)
2. Recording of Telephone Calls
At the same time the prosecution of Becker related to Flagler was progressing, the case involving Jamie was also pending. (Dkt. No. 46, Attach. 8 ¶ 35.) In early February 2007, Jamie expressed to Trainor that she wished she had a recording of a telephone call wherein Becker yelled at her. (MT: 141.) Sharing in Jamie's sentiment, Trainor explained that he could show her how to record calls, and he personally went to Jamie's home to "set up a phone device" to record calls. (MT: 141.) Trainor denies that he asked Jamie to record any calls; however, he understood that Jamie would provide him with copies of the conversations recorded with the equipment he installed for her. (MT: 142.)
3. Trainor's Statement in the Press
On May 12, 2007, after Becker was found guilty of two felony counts at trial, an article appeared in The Leader-Herald wherein Trainor was quoted as saying, among other things, that "Flagler... had been hiding out' in various places and was concerned the court would not be able to produce Flagler as a witness for trial." (Dkt. No. 49, Attach. 5; Dkt. No. 46, Attach. 8 ¶ 31.) At his deposition, Trainor ...