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Gianni v. Kopp

United States District Court, N.D. New York

March 3, 2014

KEITH KOPP et al., Defendants.

Salvatore F. Gianni, Pro Se, 08-B-3671, Cayuga Correctional Facility, Moravia, NY, for the Plaintiff.

CHARLES J. QUACKENBUSH, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York Attorney General, Albany, NY, for the Defendants.


GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff pro se Salvatore F. Gianni commenced this action against Keith Kopp and Edward Foster, pursuant to 42 U.S.C. § 1983, alleging malicious prosecution and Fourth and Fourteenth Amendment violations for unlawful arrest and unlawful detention. (Am. Compl., Dkt. No. 14.) Pending are defendants' motion for summary judgment dismissing Gianni's complaint, (Dkt. No. 72), and Gianni's appeal of Magistrate Judge Christian F. Hummel's May 20, 2013 order, (Dkt. No. 58), which denied Gianni's request to take the deposition of a non-party witness by written questions, (Dkt. No. 55). For the reasons that follow, the motion for summary judgment is granted, and Judge Hummel's order is affirmed.

II. Background[1]

Gianni is currently incarcerated in New York State prison. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 72, Attach. 2.) The events that led to Gianni's current incarceration are the subject of this dispute. In May 2008, Gianni was on probation for previous convictions of criminal contempt. ( Id. ¶ 3.) On the evening of May 3, 2008, Gianni arrived at the residence of Leah Bella, his ex-wife, despite an order of protection issued by Onondaga County Court that was in place at the time, which prohibited Gianni from having any contact with Bella outside of certain court-approved periods for child visitation. ( Id. ¶¶ 5-6, 8; Dkt. No. 72, Attach. 4 at 2, 66.) Gianni claims that, at that time, he also resided there, and that, when he arrived at the residence, he discovered another man, Jason Michlovich, in the residence with his ex-wife. (Pl.'s SMF ¶¶ 4, 8, Dkt. No. 78, Attach. 1.) Gianni tried to force his way inside the apartment door, and when he was unsuccessful, he broke a bedroom window and entered the apartment. (Defs.' SMF ¶ 11.) Michlovich then "applied pepper spray to [Gianni]'s face, at which time Gianni left the apartment and drove away. ( Id. ) Bella called 911, and Officer Kopp, a New York State Trooper, responded to the 911 call. ( Id. ¶ 10.) At that point, Bella informed Officer Kopp of Gianni's conduct and of the order of protection. (Dkt. No. 72, Attach. 4 at 43.)

Later that same evening, Gianni was involved in an automobile accident. (Defs.' SMF ¶ 9.) The Town of Clay Police Department responded to that accident, at which time Gianni was found to be intoxicated and subsequently placed under arrest and brought to Salina Town Justice Court. ( Id.; Dkt. No. 72, Attach. 4 at 3-10, 22.) Gianni was accused by felony complaint of driving while intoxicated and aggravated unlicensed operation of a vehicle. (Dkt. No. 72, Attach. 4 at 30-31.) In the meantime, after responding to the 911 call at Bella's residence, Officer Kopp learned that Gianni had been arrested and taken into custody; Officer Kopp then went to Salina Town Court, where he filed charges of burglary and criminal contempt. ( Id. at 43-44, 48-49.) Gianni was arraigned on both sets of charges, and held without bail. ( Id. at 22, 32.)

At some point while he was in custody, Gianni claims that his father, Anthony Gianni, contacted Sergeant Foster of the New York State Police, to inform him that Officer Kopp allegedly mishandled the investigation into the burglary and criminal contempt charges, and that exculpatory evidence existed, and also to request that Sergeant Foster contact the District Attorney to recommend dismissal of the charges. (Am. Compl. ¶ 4(f).)

On August 20 and 21, 2008, a violation of probation hearing was conducted in connection with the May 3, 2008 incident and related arrests, at which time Gianni was found to have violated two conditions of probation. (Dkt. No. 72, Attach. 5 at 1; Dkt. No. 72, Attach. 8 at 33-34.) He was then sentenced to a term of incarceration for those violations. (Dkt. No. 72, Attach. 8 at 36-37.) Ultimately, on November 6, 2008, Gianni pled guilty to aggravated unlicensed operation of a motor vehicle in the first degree, see N.Y. Veh. & Traf. Law § 511(3), in satisfaction of the May 3, 2008 charges against him. (Dkt. No. 72, Attach. 4 at 1, 56; Dkt. No. 72, Attach. 6.)

III. Standard of Review

A. Appeal of a Magistrate's Order

In deciding non-dispositive pretrial issues, magistrate judges in this District are afforded the broadest discretion, and will be reversed only when that discretion is abused. See Miller v. Loughren, 258 F.Supp.2d 61, 61 (N.D.N.Y. 2003). This court may modify or set aside any portion of the magistrate judge's non-dispositive order only if it is found to be "clearly erroneous or... contrary to law." Fed.R.Civ.P. 72(a); ...

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