Opinion
DOCKET NO. 97-CV-0424E(F).
July 26, 2000
Robert J. Burke, Esq., c/o Burke, Albright, Harter Rzepka, LLP, Rochester, NY., Attorney[s] for Plaintiff[s].
Daniel C. Oliverio, Esq. and Adam W. Perry, Esq. c/o Hodgson, Russ, Andrews, Woods Goodyear, LLP, Buffalo, NY., Attorney[s] for Defendant[s].
MEMORANDUM and ORDER
In and by her May 21, 1997 Complaint, plaintiff Darla J. Ellison alleged that defendants Thompson and Walsh acted under color of law to deny her equal protection of the law and to deprive her of her civil rights in violation of 42 U.S.C. § 1983. Ellison further alleges that all defendants denied her equal protection of the law as guaranteed by the United States Constitution, falsely imprisoned her, maliciously prosecuted her and defamed her. Plaintiff Kevin D. Ellison alleges that, as a result of defendants' conduct, he may properly bring a claim for loss of consortium. This Court's jurisdiction is premised upon, inter alia, 28 U.S.C. § 1331 and venue is proper pursuant to 28 U.S.C. § 1391. Presently before the Court are plaintiffs' motion to amend their Complaint and a motion for summary judgment brought by defendants Sobeck-Lynch and TS Enterprises ("the Wellsville defendants"). Plaintiffs' motion will be denied because their proposed amendments are futile, defendants' motion will be granted because plaintiffs have failed to raise a genuine issue of material fact as to any cause of action and this case will be closed.
As will be elaborated upon below, defendants Walsh and Thompson were dismissed from this action by a Stipulation and Order of Dismissal filed October 26, 1999.
As Kevin Ellison is involved in only the loss-of-consortium claim, all subsequent references to "Ellison" or "plaintiff" to Darla J. Ellison.
Ellison was the Director of Social Services/Admissions Coordinator at Wellsville Manor Nursing Home from 1986 until November 1995, during which time, according to the Complaint, she was "emotionally and psychologically" punished for advocating various patients' rights issues and filing complaints with the New York State Department of Health regarding perceived policy violations at the nursing home. In fact and by her own admission during a subsequent deposition, Ellison did not complain to the Department of Health until January 3, 1996 — i.e., after she was terminated. See Sept. 21, 1998 Dep. of Darla J. Ellison, attached as Exh G to Oct. 14, 1999 Reply Decl. of Adam W. Perry, Esq., at 95. By letter dated February 1, 1996, a representative of the Department of Health informed plaintiff that an investigation of her reports of abuse and neglect revealed no misconduct on the part of Wellsville Manor management. See Feb. 1, 1996 Dep't of Health letter, attached as Exh E to Perry Reply Decl. ("Although the incidents you described did happen, there was no evidence that neglect or abuse occurred.").
On May 22, 1996 the Department of Health cited Wellsville Manor for a number of deficiencies in connection with the department's annual recertification survey. According to the Complaint, plaintiff perceived such to be "a vindication of the prior disregarded or ignored reports she had made to her employer and to the Department of Health." Compl., ¶ ¶ 14-15. According to defendant Sobeck-Lynch, "[t]here were no notations by the Department of Health of patient abuse or neglect, and the deficiencies were unrelated to the prior complaint which the Department of Health concluded in [ sic] February 1 1996 was meritless." Sept. 2, 1999 Aff. of Reita Sobeck-Lynch, attached to Notice of Motion, ¶ 9. While the referenced report is not part of the record before me, its contents are not critical to the disposition of the instant motion. Suffice to say that word of the Wellsville Manor's "deficiencies" prompted plaintiff to have delivered to defendant Lynch a bouquet of black balloons and an attached note which read "Congratulations on the fine survey." The bouquet and "greeting" were sent anonymously.
After persuading the owner of the florist from whom the bouquet was purchased to disclose the identity of its purchase; Sobeck-Lynch contacted the New York State Police and spoke with Officer Walsh about pressing charges against Ellison. After their conversation, Walsh prepared a criminal information charging the plaintiff with Aggravated Harassment in the Second Degree, N.Y Penal Law § 240.30(1). See Information, attached as Exh A to Compl. Soon thereafter, according to the Complaint, Walsh and Thompson — also a State Trooper — went to plaintiff's home, questioned her about the events giving rise to Sobeck-Lynch's complaint, did not advise her of her right to consult with an attorney, told her that she was being arrested and directed her to proceed to the Wellsville State Police Substation. Upon her arrival at the station, plaintiff was fingerprinted, photographed and otherwise "processed." Interestingly, given her subsequent allegations of "false arrest," the Complaint suggests that the officers then informed her that they "had discussed placing her under arrest." Compl., ¶ 24(g). In any event, plaintiff then was issued an "appearance ticket" to appear in town court in connection with the misdemeanor charge.
Such section provides that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she *** [c]ommunicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm."
Appearing May 24, 1996 in the Wellsville Daily Reporter was the following news item:
"Darla J. Ellison, 34, of 43 Maple Ave., Wellsville, was charged Thursday with Second-Degree Harassment. She was summoned to appear May 29 in Wellsville Justice Court." Compl., ¶ 29.
At some time thereafter — presumably on May 29th — plaintiff and her attorney appeared and entered a plea of not guilty. On or about June 17, 1996, defendant Sobeck-Lynch posted or caused to be posted at the Wellsville Manor a memorandum to "all management staff/nursing supervisors," which contained the following language: "If Darla Ellison is on the premises or in the facility, you must call the State Police (593-1000) immediately. Then please call Dottie Torrey and me. This is private property and she is not allowed to be here." Upon Ellison's motion and noting the lack of opposition by the town prosecutor, acting Town Justice Richard Tompkins dismissed all criminal charges by Order dated June 26, 1996. According to the Complaint, "[t]he actions and conduct by defendant Lynch in having plaintiff Darla J. Ellison arrested, arraigned, her arrest publicized and the communication posted, were with the knowledge, approval and consent of defendant TS Enterprises and partner Joseph A. Tripodi." Compl., ¶ 34.
As stated above, defendants Thompson and Walsh were dismissed by a Stipulation and Order dated October 23, 1999. Inasmuch as Thompson and Walsh were the only state actors in this case and plaintiffs have failed to allege any set of facts from which to infer a state imprimatur on the Wellsville defendants' conduct, this Court finds that there is no sense in which the misconduct allegedly committed by any or all of the remaining defendants was committed "under color of law." Thus and because plaintiff's counsel effectively conceded the point at oral argument, the 42 U.S.C. § 1983 and equal protection claims will be dismissed. In the interest of judicial economy, the undersigned will address and dismiss the remaining state law claims pursuant to this Court's 28 U.S.C. § 1441(c) jurisdiction.
Plaintiffs seek to amend their Complaint by adding further allegations regarding Sobeck-Lynch's motivations for defaming her. Inasmuch as this Court — for reasons delineated below — finds the defamation claims unsustainable, the motion for leave to amend will be denied.
A motion for summary judgment must be granted where there exists no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant can satisfy his burden by pointing to an absence of evidence on an essential element of the nonmoving party's claim. See Goenaga v. March of Dimes Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). For her part, plaintiff may not create an issue of fact by raising arguments that ignore or misstate the record. See id. at 19.
Taking first the false imprisonment/arrest and malicious prosecution claims, it is well settled in New York that a civilian complainant will not be held liable for false arrest or malicious prosecution merely for "seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed." Du Chateau v. Metro-North Commuter Railroad Co., 688 N.Y.S.2d 12, 15 (App.Div., 1st Dep't 1999). "Nor does identifying plaintiff as the perpetrator of a crime, signing the summons or testifying at trial give rise to tort liability." Ibid. Instructively, the Court in Du Chateau found that the trial court had erred when it denied the civilian defendants' motion for summary judgment because, assuming the complainant "acted within the scope of her authority" in filing a complaint with the police, she simply cannot be liable, as a matter of law, for malicious prosecution or false arrest. So it is in this case. Plaintiff has proffered no evidence to suggest that Sobeck-Lynch did anything but "act within the scope of her authority." Moreover, her deposition testimony makes clear that even plaintiff does not regard Sobeck-Lynch as the one who arrested her — to wit,
"Q: And did anyone — did Ms. Lynch or any of the other Defendants arrest you?
A: She precipitated the arrest.
Q: Did Ms. Lynch or any of the other Defendants actually arrest you?
A: She doesn't have the authority to arrest me.
Q: Ma'am —
A: No, she didn't arrest me. She had me arrested." Ellison Dep. at 214.
Sobeck-Lynch "had her arrested" just as any other citizen might have — by filing a complaint with the local constabulary. Whether probable cause existed to warrant such arrest was a question for officers Thompson and Walsh and is not — any longer at least — for the undersigned. Similarly, there is no basis for plaintiff's charge that Sobeck-Lynch or any of the remaining defendants played a role in her prosecution, malicious or otherwise. Consequently, plaintiff's false imprisonment and malicious prosecution claims will be dismissed.
Darla Ellison's final claim is for defamation. According to the Complaint, such claim comprises the Daily Reporter article and the June 17, 1996 memo-posting. However, plaintiff's admission that the newspaper article was true in all respects ( see Ellison Dep. at 200), coupled with the facts that truth is an absolute defense to this brand of defamation action — see Pollnow v. Poughkeepsie Newspapers, Inc., 67 N.Y.2d 778 (1986) — and that plaintiff herself seems to have jettisoned the argument ( see Pltf Opp. Mem. at 7-9), the only extant question is whether Sobeck-Lynch's memo-posting in the Wellsvilie Manor constituted defamation. It did not.
Plaintiff contends that the "publication as a whole" as "tested by its affect [sic] on the average reader" and as "read against the background of its issuance," constitutes defamatory "criminal imputation." Id. at 8. As already noted, the memo at issue read as follows: "If Darla Ellison is on the premises or in the facility, you must call the State Police (593-1000) immediately. Then please call Dottie Torrey and me. This is private property and she is not allowed to be here." According to plaintiff, "the Memorandum in question suggests, and one can reasonably infer, that Darla Ellison's presence at the Wellsville Manor constituted a criminal activity." Pltf Mem. at 8.
"Words, whether written, printed, or spoken, may be actionable per se, that is, in themselves, or they may be actionable per quod, that is, only upon allegation and proof of special harm or damage." 43A N Y Jur.2d § 6. In the absence of a pleading of special damages, a plaintiff must make out a case of per se libel or slander. See Privitera v. Town of Phelps, 435 N.Y.S.2d 402, 404 (App.Div., 2d Dep't 1981). As Ellison has failed to plead special damages, the question before this Court is whether the language at issue is "reasonably susceptible to a connotation of criminality." Caffee v. Arnold, 478 N.Y.S.2d 683, 685 (App.Div., 2d Dep't 1984); see also McCart v. Morris, 396 N.Y.S.2d 107, 108 (App. Div., 3d Dep't 1977) (appropriate inquiry is whether the language used would to the mind of an intelligent person "naturally import a criminal or disgraceful charge"). A mere glance at the memorandum Sobeck-Lynch authored confirms that any inference therefrom of criminality would be patently unreasonable. While such clearly gives the impression that Ellison was persona non grata at Wellsville Manor, there simply is no sense in which the language is sufficient to "impute criminality" for purposes of a defamation action. Parenthetically, this Court is unpersuaded by plaintiff's argument that she would have had a right to be there had one of the residents invited her. While it is unquestionably the case that no resident did invite her, even were it otherwise the question is whether the notice heaped on plaintiff a legally sufficient amount of opprobrium. It did not. For these reasons, the plaintiffs' libel/slander claim will be dismissed.
Because all of Dana Ellison's claim will be dismissed, Kevin Ellison's derivative claim cannot be sustained and will be dismissed as well.
The final question for adjudication is whether defendants are entitled to attorneys' fees. Defendants request fees under 42 U.S.C. § 1988 for the purportedly frivolous federal claims and under New York Civil Law and Practice Rules § 8303-a for the purportedly frivolous state law claims. Taking first the federal claims, "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII [or 42 U.S.C. § 1983] case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though it was not brought in subjective bad faith." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). The analyses for Title VII and section 1983 cases are identical. See Hanrahan v. Hampton, 446 U.S. 754, 758 n. 4 (1980). To be entitled to attorney's fees, a prevailing defendant must show both that it prevailed and that the plaintiff's claims are "frivolous, unreasonable, or groundless." Christianburg, at 422.
42 U.S.C. § 1988 (b) states in relevant part: "In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [ 20 U.S.C.A. § 1681 et seq.], *** title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs***."
Such section provides in pertinent part that, "(a) [i]f in an action to recover damages for personal injury, injury to property or wrongful death, *** and such action or claim is commenced or continued by a plaintiff *** and is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs and reasonable attorney's fees not exceeding ten thousand dollars." The statute continues at subsection (c) by directing that, "[i]n order to find the action *** to be frivolous under subdivision (a) of thus section, the court must find [that the action was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law."
In this case, defendants have "prevailed" in that judgment will be granted in their favor. See Eastway Const. Corp. v. City of New York, 821 F.2d 121 (2d Cir.), cert. denied, 484 U.S. 918 (1987). As regards the frivolousness requirement, this court is amply persuaded by — and, therefore, deems nonfrivolous— plaintiffs' contention that they initially "took a position that there was collusion between the State Troopers and the Wellsville defendants, as such exposing the Wellsville defendants to the claims for violations of 42 U.S.C. § 1983 and "equal protection' as alleged in their Complaint." Pltf Mem. at 10. However, given that plaintiff proposed on June 9, 1999 that the defendant state troopers be dismissed from this case, the undersigned regards as wholly frivolous the continued prosecution of the section 1983 and equal protection claims against the undeniably non-state actors. Assuming, arguendo, the possibility of actionable "collusion" prior to June 9, 1999, once plaintiffs decided to discontinue their case against the only state defendants, such necessarily was foreclosed. Plaintiffs' contention that they continued to prosecute the federal claims against the non-state actors "to accurately ascertain if there was any collusion of conspiracy between the State and private individuals" is incredible — to wit, without any state actors or any evidence that the non-state actors themselves acted under color of state law, there simply is no basis for the federal claims. Accordingly, to the extent that defendants can quantify and document reasonable attorney's fees incurred in the defense of the section 1983 and equal protection claims after June 9, 1999, they will be entitled thereto. For the same reasons, the defendants will be entitled to attorney's fees in connection with the post-June 9, 1999 litigation of the state law claims for false arrest/imprisonment and malicious prosecution. See Entertainment Partners Group, Inc. v. Davis, 603 N.Y.S.2d 439, 440 (App.Div., 1st Dep't 1993) (finding that CPLR 8303-a "mandates an award" upon a finding that a claim was frivolous).
This conclusion is unaltered by the fact that the Stipulation was not signed until October 23, 1999. After June 9, 1999, there could have been no plausible reliance on the "collusion" theory.
Plaintiffs' counsel maintains in an affidavit that his clients "authorized" him to voluntarily discontinue the equal protection and section 1983 claims against the Wellsville defendants upon the completion of various depositions on August 27, 1999. Because there is nothing in the record to suggest that such authorized step was ever effectuated, such does not bear on the disposition of this motion.
As regards the defamation claim, the defendants will be entitled to attorney's fees — to the extent such are quantifiable — for their defense of the assertion that the newspaper article was libelous. By Ellison's own admission, this statement was true. See Ellison Dep. at 200. Thus, any claim based on the article warrants the imposition of attorney's fees. See Mitchell v. The Herald Co., 529 N.Y.S.2d 602 (App. Div., 4th Dep't 1988) (awarding attorney's fees where plaintiff and this attorney knew or should have known that the libel claim lacked merit). No attorney's fees will be awarded with regard to the notice distributed to Wellsville management.
For the foregoing reasons, it is hereby ORDERED that plaintiffs' motion for leave to amend the Complaint is denied, that defendants' motion for summary judgment is granted and that defendants' application for attorney's fees is granted — subject to quantification and final approval by this Court — for fees incurred in the defense of the newspaper article component of the defamation claims and in the post-June 9, 1999 litigation of the 42 U.S.C. § 1983, equal protection, malicious prosecution and false arrest/false imprisonment claims.