Maloney v. County of Nassau

• Decision Date: 25 September 2007
• Docket Number: No. 03-CV-4178 (SLT)(MLO).,03-CV-4178 (SLT)(MLO).
• Citation: 623 F.Supp.2d 277
• Parties: James M. MALONEY, Plaintiff, v. The COUNTY OF NASSAU, the Police Department of the County of Nassau, Denis Dillon, in his official capacity as District Attorney of the County of Nassau, Joan P. Yale, Robert Seiden, Esq., John A. Johnson, in his official capacity as Commissioner of the State of New York Office of Children and Family Services, David R. Peters, in his official capacity as Director of the State Central Register of the State of New York Office of Children and Family Services, and John Does No. 1 through 100, Defendants.
• Court: U.S. District Court — Eastern District of New York

623 F.Supp.2d 277

James M. MALONEY, Plaintiff, v. The COUNTY OF NASSAU, the Police Department of the County of Nassau, Denis Dillon, in his official capacity as District Attorney of the County of Nassau, Joan P. Yale, Robert Seiden, Esq., John A. Johnson, in his official capacity as Commissioner of the State of New York Office of Children and Family Services, David R. Peters, in his official capacity as Director of the State Central Register of the State of New York Office of Children and Family Services, and John Does No. 1 through 100, Defendants.

No. 03-CV-4178 (SLT)(MLO).

United States District Court, E.D. New York.

September 25, 2007.

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James M. Maloney, Attorney at Law, Port Washington, NY, pro se.

Victor M. Serby, Woodmere, NY, for Plaintiff.

Liora M. Ben-Sorek, Tatum J. Fox, Nassau County Attorney's Office, Mineola, NY, Stanley H. Fischer, Fischer & Burstein, Great Neck, NY, Lori L. Pack, Office of the New York State Attorney General, Hauppauge, NY, for Defendants.

MEMORANDUM AND ORDER

TOWNES, United States District Judge:

Plaintiff James M. Maloney brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his civil rights during and after an incident which began in the afternoon on August 23, 2000, and ended in the early morning of August 24, 2000 (hereinafter, the "Incident"). All of the named defendants have now filed dispositive motions. In addition, defendant Seiden has filed a motion pursuant to Fed. R.Civ.P. 15(a) to amend his answer and a motion for sanctions pursuant to Fed. R.Civ.P. 11. For the reasons set forth below, the latter two motions are denied without prejudice, and defendants' dispositive motions are granted in part and denied in part.

BACKGROUND

Although there are some disputes concerning exactly what transpired during the Incident at issue in this case, the following facts are not in dispute. Around 2:00 p.m. on August 23, 2000, plaintiff spotted a Verizon employee atop a telephone pole located on the curtilage of plaintiff's home in Port Washington, New York (County Defendants' Statement of Material Facts Pursuant to Local Rule 56.1 ("County 56.1 Statement") at ¶ 1; Plaintiff's Declaration in Opposition to County Defendants' Statement of Material Facts ("Pl. 56.1 Counterstatement") at ¶ 1). Plaintiff engaged the employee in a conversation and, thereafter, observed him with the aid of a scope of some sort (Id.).

About half an hour after the telephone worker left, two men dressed in plain clothes drove up to plaintiff's home in a van. These men told plaintiff that they were police officers and that a telephone worker had complained that plaintiff had threatened him with a rifle. Although the men demanded that plaintiff come outside, plaintiff refused to do so (County 56.1 Statement; Plaintiff's First Amended Complaint ("Am. Compl.") at ¶¶ 29-30).

These officers then summoned addition officers and a hostage negotiation team from the Nassau County Police Department (County 56.1 Statement at ¶ 2; Pl. 56.1 Counterstatement at ¶ 2). Over the ensuing twelve hours, the team spoke to plaintiff by telephone and attempted to persuade him to exit the house and surrender. During this time, plaintiff was permitted to speak to an attorney, Robert Seiden (County 56.1 Statement at ¶ 6; Pl. 56.1 Counterstatement at ¶ 6). At around 2:00 a.m. on August 24, 2000, plaintiff surrendered to the police (County 56.1 Statement at ¶ 9; Pl. 56.1 Counterstatement at ¶ 9). Shortly thereafter, numerous police officers entered plaintiff's home, where they forcibly opened a locked safe and seized various items of property (County 56.1 Statement at ¶¶ 12-13; Pl. 56.1 Counterstatement at ¶¶ 12-13).

Following his arrest, plaintiff was sent to a mental hospital, where he spent the night (County 56.1 Statement at ¶ 11; Am. Compl. at ¶ 50). Plaintiff was eventually charged with several criminal offenses (County 56.1 Statement at ¶ 10; Pl. 56.1 Counterstatement at ¶ 10), but the Nassau County District Attorney's Office subsequently permitted him to plead guilty to disorderly conduct, a violation, in full satisfaction of the charges (County 56.1 Statement at ¶ 14; Pl. 56.1 Counterstatement at ¶ 14). However, because plaintiff's young sons had been home at the time of the Incident, the New York State Office of Children and Family Services ("OCFS") investigated plaintiff for possible child abuse (State Defendants' Statement of Material Facts Pursuant to Rule 56.1 ("State 56.1 Statement") at ¶¶ 1-2; Am. Compl. at ¶ 40). Following this investigation, OCFS determined that child abuse was "indicated" (State 56.1 Statement at ¶ 2; Am. Compl. at ¶ 55). Thereafter, plaintiff wrote to OCFS, requesting that the records be amended by changing "indicated" to "unfounded—legally sealed" (State 56.1 Statement at ¶ 3; Am. Compl. at ¶ 58). In September 2001, David R. Peters, the Director of the New York State Central Register of Child Abuse and Maltreatment, responded by sending plaintiff a letter which stated, among other things:

If the record is not amended within 90 days of receiving the request, or if your request is denied after the administrative review, your request will be forwarded to the Bureau of Special Hearings for the scheduling of a fair hearing.

Ex. D to Declaration of Asst. Atty. Gen. Lori L. Pack; Am. Compl. at ¶ 59. Approximately two years later, when plaintiff had yet to receive the "fair hearing" promised by Peters, plaintiff commenced this action pursuant to 42 U.S.C. § 1983 ("§ 1983").

Plaintiff's Pleadings¹

Plaintiff's First Amended Complaint ("Amended Complaint") provides a fairly detailed account of plaintiff's version of the Incident. Plaintiff alleges that the telephone worker, later identified as Michael Cates, refused to identify himself by anything other than his first name (Am. Compl. at ¶¶ 22, 28). Plaintiff further alleges that the scope he used to observe Cates was only "a small low-power telescope," and that plaintiff put the telescope away as soon as Cates observed him using it (Id. at ¶ 23). According to plaintiff, Cates demanded to know what plaintiff had pointed at him (Id. at ¶ 24). After plaintiff assured him that it was "nothing harmful," Cates allegedly worked for another five to seven minutes before descending the pole (Id. at ¶ 26).

The First Amended Complaint acknowledges that the men who arrived in the van about 2:30 p.m. on August 23, 2000, stated that they were police officers who had received a complaint from a telephone worker alleging that plaintiff had threatened him with a rifle. (Id. at ¶ 29). Plaintiff denied doing so and, speaking from an upstairs window, attempted to explain what had happened (Id. at ¶ 30). When one of the men interrupted and asked plaintiff to come outside to talk to them (id.), plaintiff demanded to know if they were federal or state officers. (Id. at ¶ 31). The man replied, "Both," making plaintiff suspect that the men were not actually police officers (Id. at ¶ 32).

Shortly after plaintiff refused the officers' demand that he come outside, plaintiff's house "was surrounded by teams of armed police." (Id. at ¶ 33). The police cut plaintiff's telephone lines, but permitted plaintiff to speak with them by telephone (Id.). At some point, the police permitted plaintiff to speak with Seiden. The First Amended Complaint alleges that Seiden "professed to be acting on Plaintiff's behalf as Plaintiff's attorney" (id. at ¶ 35), and that plaintiff "acknowledged that Seiden was representing him as his attorney" (Id. at ¶ 36).

Over the ensuing 12 hours, the police repeatedly demanded that plaintiff exit the house and surrender (Id. at ¶ 38). Plaintiff, who denied having done anything wrong, refused to do so (Id. at ¶ 38). Aware that Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibited warrantless arrests in the home, plaintiff insisted that the police obtain a warrant. (Id. at ¶¶ 32, 38). However, the police never did so (Id. at ¶ 39).

During the Incident, Seiden repeatedly advised plaintiff that the police were preparing to break down the door and storm the house (Id. at ¶ 40). Seiden stated, and plaintiff recognized, that there was a possibility that plaintiff's wife and infant sons might be injured in the process (Id. at ¶ 41). Seiden also assured plaintiff that he "would see to it that no illegal searches and seizures occurred" (Id. at ¶ 42).

Shortly after 2:00 a.m. on August 24, 2000, plaintiff, allegedly unable to bear the "continued threat of . . . harm to [his] family" (id. at ¶ 41), stepped outside and surrendered to the police (Id. at ¶ 42). Shortly thereafter, personnel from the Nassau County Police Department entered plaintiff's home without a warrant and without consent (Id. at ¶¶ 45-48). Defendant Joan P. Yale, who is identified in the Amended Complaint only as a police "official" (id. at ¶ 9), allegedly informed plaintiff's wife that Seiden had "withdrawn" from the case and that plaintiff would need another criminal defense attorney (Id. at ¶ 45). Other officers—John Does 2 through 100—searched the house and seized "property, papers and effects, including each and every locked box in the home" (Id. at ¶ 46). Among the closed containers opened and searched by the police was plaintiff's safe, which was destroyed in the process (Id.).

Later on August 24, 2000, while involuntarily confined at Nassau County Medical Center (now known as Nassau University Hospital), plaintiff refused the hospital staff's request for a urine sample (Id. at ¶ 51). Plaintiff was thereafter restrained and "choked into unconsciousness" and threatened with further violence by a Nassau County Police paramedic, defendant John Doe No. 1 (Id. at ¶ 53).

The Amended Complaint implies that plaintiff was charged with criminal offenses stemming from the incident of August 23-24, 2000 (id. at ¶ 61), but does not specify the charges. On or about January 28,...