Opinion
4:99CV3110
August 15, 2000
MEMORANDUM AND ORDER ON THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS NESBITT, ELWELL AND HAYES, Defendants.
This case comes before me now on the motion for summary judgment by the defendants Tom Nesbitt, Glen Elwell, and T.G. Hayes. In the plaintiff's first cause of action, she has asserted that the defendants violated her right to be free from unreasonable search and seizure. The plaintiff also claims in count one that the defendants violated her right to be free from unlawful and prolonged detentions and her right to timely and effective assistance of counsel. In the plaintiff's second cause of action, she alleges that the defendants deprived her of her right to privacy protected by the Fifth and Fourteenth Amendments to the United States Constitution. Finally, the plaintiff's third cause of action is based on the tort of intentional infliction of emotional distress. The defendants claim that there are no genuine issues of material fact and that they are entitled to qualified immunity from liability as a matter of law.
I have reviewed the submissions and I find that there is no evidence to support the plaintiff's claims of unreasonable search, right to counsel, or intentional infliction of emotional distress as to any of the three defendants. Moreover, with respect to the defendant Elwell, I find nothing that prevents me from granting the motion for summary judgment in its entirety. The affidavit of this defendant, which the plaintiff did not contradict, shows that he did nothing to infringe on the plaintiff's constitutional rights.
The plaintiff responded to the defendants' motion for summary judgment with a short brief and an evidence index including the defendants' affidavits and several other exhibits. The plaintiff failed, however, to follow the requirements of Local Rule 56.1(b) in preparing her opposition. The plaintiff's Statement of Material Facts As To Which It Is Contended There Exist Genuine Issues To Be Tried (hereinafter Statement of Material Facts) is a curious submission, consisting of only a series of questions without any specific references to the evidence, as required by our local rules. See NELR 56.1(b) (requiring references to "the specific document or discovery response or deposition testimony (by page and line) which it is claimed establishes the issue"). I do, however, recognize that the plaintiff's ability to create a factual record was limited, given the April 24, 2000, order, filing 56, staying discovery pending a ruling on this motion. I have taken this limitation in account in evaluating the plaintiff's deficient Statement of Material Facts.
1. Standard of Review
A motion for summary judgment shall be granted when, viewing the facts and reasonable inferences arising therefrom in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citations omitted).
2. Background
The relevant facts for the resolution of this motion for summary judgment are found in the affidavits of the defendants filed in support of this motion and in the memos and reports filed by the plaintiff in opposition to the defendants' motion. See filing 48, filing 57. I shall not restate the facts here.
3. Analysis
Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of [her] federal constitutional rights. 42 U.S.C. § 1983. In defending § 1983 claims, public officials may assert the affirmative defense of qualified immunity, which, if applicable, will shield them "from civil damages arising from a lawsuit in which it is alleged that their actions resulted in the violation of a plaintiff's constitutional rights." Rowe v. Carson, 911 F. Supp. 389, 392 (1996); see also Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (providing that "[q]ualified or `good faith' immunity is an affirmative defense that must be pleaded by a defendant official" (citation omitted)). The qualified immunity defense, which is generally only available to public officials performing discretionary acts, has evolved to "provide ample protection to all but the plainly incompetent or those who knowingly violate the law," and gives "ample room for mistaken judgments." Harlow, 457 U.S. at 816; Malley v. Briggs, 475 U.S. 335, 341, 343 (1986). Absent an underlying factual dispute, the question of whether a public official is entitled to the protection of qualified immunity is an issue of law for the court. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). Furthermore, the United States Supreme Court has recognized that "because `[t]he entitlement is an immunity from suit rather than a mere defense to liability,' . . . we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 226 (1991) (citations omitted).
Whether qualified immunity will shield a public official from liability depends upon a threefold inquiry. Ludwig, 54 F.3d at 470; Rowe, 911 F. Supp. at 392 (citations omitted). First, I must inquire whether the plaintiff has asserted a violation of a federal law or a constitutional right. Ludwig, 54 F.3d at 470. I must then determine "whether the right asserted by the plaintiff was clearly established at the time of the alleged violation." Id. In the final step of the qualified immunity inquiry, I must analyze whether the defendants' actions were objectively reasonable. Id.
1. Count 1 of the Second Amended Complaint
In plaintiff's first cause of action, she asserts that the defendants violated her right to be free from unreasonable seizure, illegal detention, and unlawful arrest. She also alleges in count one that the defendants deprived her of her right to be free from unreasonable search and her right to counsel. The defendants claim that they are entitled to the protection of the qualified immunity defense. The unreasonable seizure, illegal detention, and unlawful arrest claims will be analyzed separately as to each individual defendant.
a. Defendant T.G. Hayes
According to the United States Supreme Court, "an officer whose request for a warrant allegedly caused an unconstitutional arrest" is entitled to qualified immunity from liability. Malley, 475 U.S. at 344. In defining the boundaries of this immunity, the Court stated that "[d]efendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized." Id. at 341. Only in those cases "where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost." Id.; see also Thompson v. Reutin, 968 F.2d 756, 760 (8th Cir. 1992) (providing that "`police officers seeking arrest warrants are entitled to qualified immunity for their actions unless `the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable . . .'" (citation omitted)). Accordingly, "[e]ven law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter, 502 U.S. at 226 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)); see also Hoffman v. Reali, 973 F.2d 980, 986 (1st Cir. 1992) (stating that "it is `objectively reasonable' for a police officer to seek an arrest warrant so long as the presence of probable cause is at least arguable"). Thus, in order to be protected by the shield of qualified immunity, the defendant Hayes must show that he had (1) probable cause to arrest the person sought, and (2) a reasonable belief that the person arrested (the plaintiff) was the person sought. See Hill v. California, 401 U.S. 797, 802 (1971); United States v. Glover, 725 F.2d 120, 122 (D.C. Cir. 1984).
The facts clearly indicate that this is a case of mistaken identity. The defendant Hayes freely admits that he erroneously determined which woman, either presently or formerly known as Donna Aude, was involved in the sale of methamphetamines to the confidential informant. According to the affidavit of the defendant Hayes, his confidential informant identified Donna Aude as the subject of the controlled drug buys. Affidavit of T.G. Hayes ¶ 4. This informant also knew Donna Aude by the names Donna Widler and Donna Stewart. Id. Before the arrest, the defendant learned from a former Fairbury police officer, Mitch Sieve, that Donna Aude had married Rick Widler and was now going by the name Donna Widler. Id. ¶ 7. The defendant Hayes also learned through information from his confidential informant that the suspect of the investigation worked in Fairbury, Nebraska, but lived in Belvedere, Nebraska. Id. ¶ 8. Thus, in preparing to obtain an arrest warrant for the suspect, the defendant Hayes focused his investigation on Donna Widler living in Belvedere. Id. ¶ 9. Donna Widler's driver's license number revealed that her address was P.O. Box 324, Belvedere, Nebraska. Id.
The plaintiff contends, however, that the defendant Hayes failed "[to] take the actions legally required under [his] duties and responsibilities to ensure that the person sought in the warrant could be found at Plaintiff's residence." Second Amended Complaint, filing 20 ¶ 31. More specifically, the plaintiff argues that summary judgment is inappropriate at this time because a genuine issue of material fact remains as to how it was determined that the arrest warrant would be served at the plaintiff's residence. I agree with the plaintiff.
In the investigative memo attached to the affidavit of the defendant Glen Elwell, Investigator Brodecky indicates that he and his fellow team members were provided with a packet of information that included a photo and the location, presumably a street address, of the plaintiff's residence. Affidavit of Glen Elwell, Attachment, Investigative Memo by Inv. Brodecky. The defendant Hayes states in his affidavit that he obtained the address for Donna Widler, the plaintiff, from the driver's license database. Affidavit of T.G. Hayes ¶ 9. This "address," however, included only the plaintiff's post office box number, not her street address. The defendant's affidavit and supporting materials fail to explain how he then ascertained the plaintiff's street address, where the arresting officers attempted to serve the warrant. Thus, there is a glaring factual hole as to the source of information that enabled the defendant Hayes to translate the post office address for Donna Widler, P.O. Box 324, Belvedere, NE, to a corresponding street address. As the plaintiff correctly observes, a genuine issue of material fact therefore exists as to the source of this additional information and whether this source may have alerted the defendant Hayes of his error. Thus, the defendant Hayes' motion for summary judgment as to the plaintiff's unreasonable seizure, illegal detention, and unlawful arrest claims shall be denied.
b. Defendant Glen Elwell
The Supreme Court has noted that "[t]he first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right `secured by the Constitution and laws.'" Baker v. McCollan, 443 U.S. 137, 140 (1979). The plaintiff claims that the defendant Elwell's actions on February 13, 1998, deprived her of her Fourth and Fourteenth Amendment right to be free from unreasonable seizure, illegal detention, and unlawful arrest. I disagree.
The Fourth Amendment protects an individual's right to be free from unreasonable seizure. U.S. Const. amend. 4. Generally, this Fourth Amendment right translates into a warrant requirement. Brayman v. United States, 96 F.3d 1061, 1065 (8th Cir. 1996). The Constitution, however, "does not guarantee that only the guilty will be arrested." Baker, 443 U.S. at 145. In cases involving the arrest of a person mistakenly thought to be another, the arrest is deemed valid if the arresting officer "(a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought." Glover, 725 F.2d at 122 (citing Hill, 401 U.S. at 802; United States v. McEachern, 675 F.2d 618, 621 (4th Cir. 1982); Sanders v. United States, 339 A.2d 373, 379 (D.C.Ct. of Appeals 1975)). Thus, "[a]n arrest executed pursuant to a facially valid warrant generally does not give rise to a cause of action under 42 U.S.C. § 1983 against the arresting officer." Fair v. Fulbright, 844 F.2d 567, 568 (8th Cir. 1988).
The arrest warrant in this case was at least facially valid. In order for a warrant to be valid on its face, two elements must be satisfied: first, the warrant must be issued by a neutral and detached magistrate after a finding of probable cause; and second, the warrant must name, or, if unknown, describe the person to be arrested so that he or she can be identified with reasonable certainty. Fed.R.Crim.P. 4. In this case, there is no reason to doubt that the warrant for Donna Widler was issued by a neutral, detached county court judge of Jefferson County, Nebraska, after a finding of probable cause. The plaintiff has presented no evidence to the contrary. Likewise, the warrant issued in this case included the name of the person to be arrested. Thus, the warrant issued was at least facially valid, and the defendant Elwell, acting pursuant to this warrant, had probable cause to arrest the person sought.
Thus, the issue is whether the defendant Elwell reasonably believed that the plaintiff was the person sought in the warrant. The plaintiff admits that she was the person named in the warrant. See Second Amended Complaint, filing 20 ¶ 23. Furthermore, the plaintiff matched the description set forth in the supporting affidavit. I therefore find that the defendant Elwell acted reasonably in believing that the plaintiff was the person sought in the warrant. Because the defendant Elwell had probable cause to arrest the person sought in the warrant and reasonably believed that the plaintiff was the person sought, the plaintiff's arrest was valid. See Hill, 401 U.S. at 802. Thus, the defendant Elwell did not deprive the plaintiff of her Fourth Amendment rights, and his supervisory role in executing the warrant does not give rise to a cause of action under 42 U.S.C. § 1983.
The plaintiff also claims that the defendant Elwell's conduct violated her right to be free from illegal detention. To support this contention, the plaintiff alleges that the defendant acted recklessly "in failing to stop the unlawful search and seizure." See Second Amended Complaint, filing 20 ¶ 32. The facts, however, simply do not support this contention. Upon learning that there was a potential problem with the warrant, the defendant Elwell took several reasonable steps to ensure that the proper person was arrested. He contacted the defendant Hayes, the case officer, and the defendant Nesbitt to report the possible mistake. Affidavit of Glenn Elwell ¶ 9. He then supervised as another officer photographed the plaintiff so her picture could be shown to the confidential informant. Id. After informing the plaintiff that the officers would be further investigating the matter, the defendant Elwell then left the plaintiff's residence. Id. Clearly, these actions were not "reckless"; rather, such actions were entirely reasonable in light of the plaintiff's repeated claims of innocence. See Baker, 443 U.S. at 145-46 (stating that "we do not think a sheriff executing an arrest warrant is required by the Constitution to investigate independently every claim of innocence . . ." (emphasis supplied)).
"For conduct to be `reckless' it must be such as to evince disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended." Black's Law Dictionary 1142 (5th ed. 1979).
The plaintiff alleges that before the defendant Elwell left, however, he told her that she was not to leave her house or use the phone until an officer returned. See Second Amended Complaint, filing 20 ¶ 17. The defendant Elwell denies making this statement. See Affidavit of Glenn Elwell ¶ 9. Nevertheless, this factual dispute fails to relate to a genuine issue of material fact. Even if the defendant Elwell had told the plaintiff that she was not free to use the phone or leave her home until an officer returned, the resulting detention (approximately three hours) does not rise to the level of a constitutional violation. While "mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of `liberty . . . without process of law,'" the Supreme Court has concluded that "a detention of three days over a New Year's weekend does not and could not amount so such a deprivation." See Baker, 443 U.S. at 145; see also Mensh v. Dyer, 956 F.2d 36, 39 (4th Cir. 1991) (recognizing that "`[n]ot every mix-up in the issuance of the arrest warrant, even though it leads to the arrest of the wrong person, with attendant inconvenience and humiliation, automatically constitutes a constitutional violation for which a remedy may be sought under 42 U.S.C. § 1983.'" (quoting Thompson v. Prince William County, 753 F.2d 363, 364 (4th Cir. 1985))). Likewise, a three-hour detention, while inconvenient, does not trigger the protections of the Fourteenth Amendment. Thus, the plaintiff's claim that the defendant Elwell acted recklessly in violating her right to be free from illegal detention must also fail.
The plaintiff alleges that she remained in her home from the time the officers left, around 10:30 am, until approximately 1:30 pm, when she called the Thayer County Sheriff's Department and was told by the defendant Young that she was free "to go about her day." See Second Amended Complaint, filing 20 ¶ 19.
Moreover, even if the plaintiff could establish that her arrest and/or subsequent detention deprived her of her clearly established rights, the defendant Elwell would be entitled to the protection of qualified immunity. The defendant's reliance on a facially valid warrant in supervising the arrest of a person he reasonably believed to be the subject of the warrant was objectively reasonable. Likewise, as outlined above, the defendant's conduct upon learning of a potential problem with the warrant was also reasonable under the circumstances. The plaintiff has submitted no competent summary judgment evidence indicating that the defendant's actions were objectively unreasonable in light of the fact that the defendant Elwell was not involved in the investigation of the suspect, the application for an arrest warrant, or the initial attempt to execute the warrant on Donna Widler. Thus, even if the plaintiff has alleged a violation of a clearly established constitutional right protected by either the Fourth or Fourteenth Amendment, I find that the defendant Elwell is entitled to the protection of qualified immunity.
c. Defendant Tom Nesbitt
It is well established that "[s]ection 1983 liability cannot attach to a supervisor merely because a subordinate violated someone's constitutional rights." Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Thus, a supervisor can be held liable for the constitutional violations of his subordinates only "`if he directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation. . . .'" Id. (quoting Tilson v. Forrest City Police Dep't, 28 F.3d 802, 806 (8th Cir. 1994) (citations omitted)); see also Ramirez v. United States, 998 F. Supp. 425, 432 (D.N.J. 1998) (determining that "the supervising official does not violate a victim's constitutional rights unless he or she has played `an affirmative part' in the alleged misconduct of the subordinates" (citation omitted)).
The defendant Nesbitt supervised the defendant Hayes at the time of the events giving rise to the plaintiff's claim. There is no evidence, however, indicating that the defendant Nesbitt was involved, other than in his supervisory capacity, in the warrant application process. Nor is there any evidence suggesting that the defendant Nesbitt failed to train the defendant Hayes properly.
With respect to the defendant Nesbitt's role in the service of the warrant at the plaintiff's residence, the defendant's affidavit states that his duties were supervisory in nature, consisting only "of [making] assignments for service of the arrest warrants." Affidavit of Tom Nesbitt ¶ 8. Nevertheless, as was the case with the defendant Hayes, a genuine issue of material fact remains as to how it was determined to serve the warrant at the plaintiff's residence. The defendant Hayes indicates that he obtained the plaintiff's post office box number from the driver's license database. In is unclear at this point whether the defendant Nesbitt, as the Sergeant in Charge of the Rural Apprehension Program who briefed the arresting officers in regard to the warrant, played a role in ascertaining the street address that corresponded with this post office box number. If the defendant Nesbitt was involved in making this determination, questions remain as to what source of information led him to the plaintiff's residence and whether this source may have alerted him to the error. Thus, the defendant Nesbitt's motion for summary judgment as to the plaintiff's unreasonable seizure, illegal detention, and unlawful arrest claims shall be denied.
d. Unreasonable Seizure and Assistance of Counsel Claims Defendants T.G. Hayes, Tom Nesbitt, and Glen Elwell
Also in count one, the plaintiff alleges that the defendants violated her right to be free from unreasonable search. The evidence clearly indicates, however, that the defendants Hayes, Nesbitt, and Elwell were not involved in the search of the plaintiff's home. Moreover, even if the defendants had participated in the search, the plaintiff does not dispute the fact that she consented to the search and sets forth no evidence that the search was performed in an unreasonable manner. Thus, I find that the defendants' motion for summary judgment shall be granted as to the plaintiff's unreasonable search claim.
Lastly, in count one the plaintiff alleges that the defendants denied her "the timely and effective assistance and advice of counsel" in violation of the Fourteenth Amendment. There is no evidence before me that supports this allegation. Therefore, I find that this claim must also fail as to all three defendants.
2. Count II of the Second Amended Complaint
In count two of her second amended complaint, the plaintiff alleges a violation of her right to privacy as protected by the Fourteenth Amendment. The United States Supreme Court has recognized that the Fourteenth Amendment creates a "zone of privacy" that protects two types of interests: the right to prevent the disclosure of certain personal information and the right to make decisions regarding certain personal matters free from government interference. Whalen v. Roe, 429 U.S. 589, 598-600 (1977). Thus, the Fifth and Fourteenth Amendments protect an individual's interest in both confidentiality and autonomy: "[c]onfidentiality concerns an individual's interest in avoiding disclosure of personal matters, and autonomy pertains to an individual's interest in independence in making certain kinds of important decisions." Alexander v. Peffer, 993 F.2d 1348, 1349-50 (8th Cir. 1993) (citing Whalen, 429 U.S. at 600 n. 26).
The Plaintiff also alleged that the defendants violated her right to privacy protected by the Fifth Amendment. Although one of the purposes of the Fifth Amendment is to protect personal privacy, "the [Supreme] Court has never suggested that every invasion of privacy violates the privilege." Fischer v. United States, 425 U.S. 391, 399 (1976). Thus, the Fifth Amendment does not create a general "zone of privacy"; rather, this amendment "deal[s] with the more specific issue of compelled self-incrimination." Id. at 400. I therefore fail to see how any privacy interest protected by the Fifth Amendment is implicated in this case.
The Court has characterized these matters as "relating to marriage, procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. 693, 713 (1979).
The plaintiff has failed to present evidence that the defendants' conduct implicated either of these two types of interests. Thus, insofar as the plaintiff alleges a violation of her right to privacy as protected by the Fourteenth Amendment, I find that summary judgment should be granted as to all three defendants.
The Fourth Amendment also protects, to a limited extent, an individual's right to privacy. Katz v. United States, 389 U.S. 347, 350 (1967). Although the Fourth Amendment "cannot be translated into a general constitutional `right to privacy,'" it does protect "individual privacy against certain kinds of governmental intrusion," including the right to be free from unreasonable searches and seizures. Id.; see also U.S. Const. amend. 4 (protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . ."); Mapp v. Ohio, 367 U.S. 643, 646-47, 657 (1961) (extending application of the exclusionary rule to the states); Wolf v. Colorado, 338 U.S. 25, 27-28, (1949) (holding that the Fourth Amendment is enforceable against the states through the Due Process Clause of the Fourteenth Amendment). Thus, insofar as the plaintiff's privacy claim derives from her allegation that the defendants violated her Fourth Amendment right to be free from unreasonable search and seizure, I find as follows: (1) the plaintiff's claim that the defendants Hayes and Nesbitt violated her right to be free from unreasonable seizure shall be retained; (2) the plaintiff's claim that the defendant Elwell violated her right to be free from unreasonable seizure shall be dismissed; and (3) the plaintiff's claim that the defendants violated her right to be free from an unreasonable search shall be dismissed as to all three defendants.
3. Count III of the Second Amended Complaint
In count three of her second amended complaint, the plaintiff alleges that the defendants' conduct constituted the tort of intentional infliction of emotional distress. According to the plaintiff, the defendants' conduct was so outrageous and extreme that it transcended all bounds of decency. After reviewing the submissions, I find the evidence does not support this claim as to any of the three defendants.
To establish a prima facie case for the tort of intentional infliction of emotional distress, the plaintiff must allege the following:
(1) there has been intentional or reckless conduct, (2) the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community, and (3) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.Braesch v. Union Ins. Co., 237 Neb. 44, 60, 464 N.W.2d 769, 778-79 (1991). While physical injury is not a required element of this tort, "[a]n extremely disabling emotional response is required." Id. at 779 (citing Davis v. Texaco, Inc., 210 Neb. 67, 313 N.W.2d 221 (1981)). Accordingly, the plaintiff's "proof must show more than mere worry, anxiety, vexation, or anger." Gall v. Great Western Sugar Co., 219 Neb. 354, 359, 363 N.W.2d 373, 377 (1985).
Although the plaintiff may have been "understandably and unquestionably perturbed, worried, and upset" by the events of February 13, 1998, she has failed to establish that her emotional injury was of the type "so severe that no reasonable person could be expected to endure." Dale v. Thomas Funeral Home, 237 Neb. 528, 532, 466 N.W.2d 805, 808 (1991). Quite simply, the plaintiff has failed to demonstrate that her emotional response was "extremely disabling." Her second amended complaint illustrates that she was able to repeatedly profess her innocence and conduct herself at all times while the officers were in her home. Although she alleges that she "sobbed" after the officers left, she was able to compose herself enough to use the phone on three separate occasions within a three-hour time frame after the incident. Thus, I find that the plaintiff's statement in her second amended complaint that her emotional distress was "so severe that no reasonable person should be expected to endure it" is unsupported by the facts. Accordingly, the plaintiff's intentional infliction of emotional distress claim must also fail as to all three defendants.
IT IS ORDERED THAT:
1. the defendant Elwell's motion for summary judgment is granted in full;
2. the defendant Hayes' motion for summary judgment is granted, except that it is denied insofar as it is based on a claim that the seizure was unreasonable because it was made without a reasonable belief that the plaintiff was the person sought in the warrant; and
3. the defendant Nesbitt's motion for summary judgment is granted, except that it is denied insofar as it is based on a claim that the seizure was unreasonable because it was made without a reasonable belief that the plaintiff was the person sought in the warrant.