MARGO K. BRODIE, District Judge:
Plaintiff Michael Charles commenced the above-captioned action against Defendants County of Nassau, Nassau County Police Commissioner Lawrence Mulvey, Nassau County Police Chief of Detectives Steven Skrynecki, in his official and individual capacity, Nassau County Police Detective Lieutenant Kevin Smith, in his individual and official capacity, Nassau County Police Detective Rene Yao, in his official and individual capacity, Nassau County Police Detective Charles Decaro, in his official and individual capacity, Nassau County Police Detective Sergeant Richard Dorsi, in his official and individual capacity, John Does # 1-5 (collectively, "County Defendants"), Incorporated Village of Hempstead, Village of Hempstead Trustee Perry Pettus, in his official and individual capacities, Village of Hempstead Police Chief Joseph Wing, in his official and individual capacities (collectively, "Village Defendants"), and Kenneth Powell.
County Defendants moved for summary judgment and Village Defendants moved for judgment on the pleadings, or in the alternative for summary judgment. In opposition, Plaintiff sought leave to amend his Complaint. The Court referred the motions to Magistrate Judge Gary R. Brown for a report and recommendation. (Order dated June 3, 2014.) By report and recommendation dated February 20, 2015 ("R & R"), Judge Brown recommended that the Court deny in part and grant in part Defendants' motions. For the reasons set forth below, the Court adopts Judge Brown's R & R in its entirety.
In his Complaint, Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for: false arrest against all Defendants; First
On May 6, 2014, County Defendants moved for summary judgment and Village Defendants moved for judgment on the pleadings, or in the alternative for summary judgment. In opposition, Plaintiff sought leave to amend his Complaint. On June 3, 2014, the Court referred the motions to Judge Brown for a report and recommendation, and Judge Brown issued his report and recommendation on February 20, 2015. After multiple extensions granted by this Court, on April 22, 2015, Village Defendants filed objections to Judge Brown's R & R.
Having reviewed the R & R and the parties' submissions, the Court grants the County of Nassau and Incorporated Village of Hempstead's motions for summary judgment as to Plaintiff's Monell claims and dismisses Plaintiff's state law claims for defamation and intentional infliction of emotional distress as withdrawn. The Court denies Defendants' motions for summary judgment as to Plaintiff's claims for First Amendment retaliation, § 1983 conspiracy, abuse of process under state law, and false arrest under state and federal law, and denies Plaintiff's motion for leave to amend the Complaint. The Court sua sponte dismisses the action as to John Does # 1-5, and orders Plaintiff to show cause why the action should not be dismissed as to Powell.
The Court assumes familiarity with the facts at issue in this action, which are presented in greater detail in Judge Brown's R & R. The Court recounts below the factual background necessary to resolve Village Defendants' objections.
On the afternoon of March 7, 2010, a shooting occurred on Peters Avenue in Hempstead, New York. Plaintiff, who at the time was a volunteer Fire Chief at the Hempstead Village Fire Department, responded to Peters Avenue to offer medical assistance to the victims. (Charles Aff., annexed to Decl. of Mariel LaSasso ("LaSasso Decl.") as Ex. 3, ¶¶ 4-9.) Plaintiff contends that when he arrived on the scene, a responding police officer indicated to him the direction in which the suspected perpetrator of the shooting had fled.
Powell reported the March 7, 2010 encounter with Plaintiff to the NCPD as a crime against him. (Cty. Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) On March 8, Powell contacted his father, Defendant Pettus, complaining of his encounter with Plaintiff. Pettus then contacted his friend Defendant Joseph Wing, Chief of the Village of Hempstead Police, to ask what Wing "was going to do about it." (Direct Exam. of Joseph Wing in Bench Trial Tr., annexed to LaSasso Decl. as Ex. 2, 218:17-219:3.) Wing called Detective Lieutenant Raymond Cote of NCPD's Third Squad. (Id. at 218:17-220:2.) According to Plaintiff, Detective Yao of the NCPD informed Plaintiff that Cote and Pettus met privately on March 8. (Charles Aff. ¶ 28.) Following a brief investigation,
Plaintiff was indicted for menacing in the second degree, unlawful imprisonment in the second degree, and criminal impersonation in the second degree. (Order dated Dec. 1, 2010, annexed to Decl. of Thomas Lai in Further Supp. of Cty. Def. Mot. ("Lai Decl.") as Ex. L, 1.) The state court judge determined that the evidence was legally insufficient to support charges of unlawful imprisonment in the second degree and criminal impersonation in the second degree, but allowed the charge for menacing in the second degree to proceed to a bench trial. (Id.; see generally Bench Trial Tr., annexed LaSasso Decl. as Ex. 2.) Following trial, the state court judge found Plaintiff not guilty.
Plaintiff filed his Complaint on June 6, 2011, and County Defendants and Village Defendants filed their Answers to the Complaint on November 21, 2011 and December 5, 2011, respectively. (Docket Entry Nos. 16, 19.) Defendants Powell and John Does # 1-5 never appeared in the action, nor did they file an answer. No summons was ever returned for either Powell or the John Doe defendants. The Court sua sponte dismisses without prejudice
Since the inception of this case, the parties to this action have had substantial difficulty complying with court-ordered deadlines, which has led to repeated disagreement over the direction of the litigation. Following the Answers to the Complaint, the parties engaged in very little discovery within the court-ordered deadlines. At an initial pre-trial conference held on December 8, 2011, Magistrate Judge E. Thomas Boyle set June 30, 2012 as the deadline for the parties to complete all discovery. Initial disclosures were to be served on or before December 30, 2011. (Docket Entry No. 22.) By letter dated April 12, 2012, Plaintiff sought a 45-day extension of time for all parties to respond to outstanding discovery requests, (Docket Entry No. 23), which request was granted and discovery was extended through August 14, 2012, (Order dated April 13, 2012). On August 14, 2012, Plaintiff submitted a second request for an extension of time to complete discovery, through November 19, 2012, (Docket Entry No. 25), which was again granted, (Order dated August 15, 2012). A third and final request for extension was granted on November 16, 2012, extending discovery through February 7, 2013. (Docket Entry No. 26; Order dated November 16, 2012.) On March 18, 2013, County Defendants made a subsequent untimely application to further extend discovery through July 26, 2013, which was denied as untimely on March 19, 2013. (Docket Entry No. 29.) In that same order, Judge Boyle certified discovery complete as of February 7, 2013, and directed the parties to file a joint pretrial order by March 29, 2013.
Citing the dissolution of her law firm and the effects of Hurricane Sandy as the reason for her failure to meet Judge Boyle's deadlines, Plaintiff's counsel requested a conference regarding Judge Boyle's March 19, 2013 Order. (Docket Entry No. 30.) By letter dated April 4, 2013, Plaintiff requested that Judge Boyle reconsider his April 3, 2013 Order and denial of the requests to extend discovery, noting that Plaintiff had not received initial Rule 26 productions from Village Defendants, and had not deposed any witnesses. (Docket Entry No. 35, 2-3.) On the same day, Village Defendants responded that, despite serving Plaintiff with a Rule 26(a) initial disclosure on February 28, 2012, they had not received Plaintiff's initial disclosure. (Docket Entry No. 36.)
At an April 11, 2013 status conference, Judge Boyle granted a motion for reconsideration of his March 19, 2013 Order and affirmed his initial determination. (Docket Entry No. 40.) At the conference, it became clear that virtually no discovery was exchanged by or between the parties prior to the discovery deadline. Judge Boyle commented that Plaintiff was "fortunate in that there was a criminal trial in this case" and that he had "more of a record than you have in 999 out of 1,000 cases in this court." (Tr. of Apr. 11, 2013 Status Conf. ("Apr. 11 Tr.") 6:12-20, Docket Entry No. 95-2.) Judge Boyle indicated that discovery could be done on a "consensual basis" but told the parties that court intervention was no longer an option. (Id. at 14:19-25.) Judge Boyle noted that the parties "had more than ample opportunity to do this case and as I say, you have the distinct advantage here of having a whole criminal record—criminal trial. So for all those reasons, in addition to what was stated in the original order, I'm going to deny your application in all other respects." (Id. at 20:24-21:4.) Judge Boyle reminded the parties that "to the extent that the parties want to engage in any kind of disclosure here, you all know that you have the right to do that up to and including any trial. . . . But court intervention is over." (Id. 22:4-9.)
On April 5, 2013 and April 6, 2013, County Defendants and Plaintiff each filed a proposed pre-trial order. (Docket Entry Nos. 37, 38.) On April 19, 2013, Village Defendants sought to amend Plaintiff's proposed pre-trial order, arguing that evidence and witnesses were not disclosed prior to the February 7, 2013 discovery deadline. (Docket Entry No. 42.) On April 22, 2013, County Defendants also filed a motion to amend, arguing, inter alia, that Plaintiff failed to disclose several listed witnesses prior to the discovery deadline. (Docket Entry No. 43.) Plaintiff opposed the motions, indicating that the proposed evidence was proper because Plaintiff had made a substantial production on March 5, 2013, which included the criminal trial documents, although it was after the discovery deadline. (Docket Entry Nos. 47, 49.) Defendants submitted replies in support of their motions, reiterating their objections to Plaintiff's use of evidence produced after the discovery
On May 23, 2013, Judge Boyle denied Defendants' motion to amend the pre-trial order and vacated his April 3, 2013 order directing the parties to file a joint pre-trial order by April 5, 2013, pending the outcome of the motions for summary judgment. (Docket Entry No. 53.) Judge Boyle noted that "[t]he outcome of these summary judgment motions may well affect or moot out the pending motions by [D]efendants addressed to a plethora of alleged improprieties in [P]laintiff's portion of the pre-trial order" and denied the motions without prejudice to renew following a motion for summary judgment. (Id. at 1-2.)
Defendants requested a pre-motion conference concerning their anticipated motions for judgment on the pleadings and summary judgment. (Docket Entry Nos. 39, 41.) On April 25, 2013, Plaintiff opposed the requests, seeking an additional extension of time for discovery. (Docket Entry No. 46.) Plaintiff indicated that Village Defendants had failed to produce any responsive documents, and that County Defendants had provided only limited document discovery and a response to Plaintiff's first set of interrogatories. (Id. at 2.) Plaintiff also indicated that despite counsel's challenges with her law firm, Plaintiff had made a belated document production on March 5, 2013. (Id.) Plaintiff sought an extension of time to conduct limited depositions and compel certain documents. (Id. at 2-3.)
By letter dated June 3, 2013, Plaintiff again requested that the Court permit him to engage in limited discovery, with Court intervention, as very little had happened in the action and Plaintiff was unable to obtain certain documents without a motion to compel or depose certain witnesses without subpoenas. (Docket Entry No. 55.) The Court construed Plaintiff's requests as an appeal from Judge Boyle's order and, on July 15, 2013, denied the application to vacate Judge Boyle's ruling. (Docket Entry No. 60.) By letter dated August 6, 2013, Plaintiff attempted to obtain depositions of Brian Schuck, Gary Ferucci, Robert Napolitano and Henry Conyers, which applications Defendants opposed, stating that they did not intend to depose those witnesses. (Docket Entry Nos. 95-4-95-8.)
On August 23, 2013, the Court held a pre-motion conference regarding Defendants' proposed motions to dismiss or for summary judgment pursuant to Rules 12(c) and 56 of the Federal Rules of Civil Procedure. (Minute Entry dated August 23, 2013.) On the record, counsel for Village
A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); see also Larocco v. Jackson, No. 10-CV-1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco, 2010 WL 5068006, at *2. The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates its original arguments. See Rahman v. Fischer, No. 10-CV-1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014) ("If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error." (citations omitted)); Time Square Foods Imports LLC v. Philbin, No. 12-CV-9101, 2014 WL 521242, at *2 (S.D.N.Y. Feb. 10, 2014) (clearly erroneous standard applies when party reiterates arguments made to the magistrate judge); see also DePrima v. City of New York Dep't of Educ., No. 12-CV-3626, 2014 WL 1155282, at *3 (E.D.N.Y. Mar. 20, 2014) (collecting cases).
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir.2015); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir. 2013). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd.
In his R & R, Judge Brown recommends that the Court grant summary judgment to the County of Nassau and the Incorporated Village of Hempstead as to Plaintiff's Monell claim. (R & R 32.) Judge Brown also recommends that the Court deny summary judgment in all other respects, dismiss Plaintiff's claims for defamation and intentional infliction of emotional distress under New York State law on consent, and deny Plaintiff's motion for leave to amend the Complaint as moot. (Id.)
After seeking extensions of nearly two months to object to the R & R, Village Defendants submitted objections to the R & R on three grounds, arguing: (1) Judge Brown improperly treated Village Defendants' motion for judgment on the pleadings, pursuant to Rule 12(c), as a motion for summary judgment, and should have dismissed the conspiracy and First Amendment retaliation claims pursuant to Rule 12(c); (2) Plaintiff should have been precluded from relying on any documents not disclosed prior to the February 7, 2013 discovery deadline; and (3) as a matter of law, Village Defendants were not responsible for Plaintiff's arrest, and thus Judge Brown should have dismissed Plaintiff's false arrest claim as to the Village Defendants. The Court addresses each objection separately below.
Judge Brown determined that "the motion by the Village Defendants, though captioned in the alternative, is properly treated as a motion for summary judgment." (R & R 14.) Village Defendants object to Judge Brown's treatment of their motion as a motion for summary judgment. (Def. Obj. 4-7.) Village Defendants contend that they "could not have reasonably recognized the possibility that their motion for a judgment on the pleadings would be converted to a summary judgment motion," (id. at 6), and that "at no time did the Village Defendants intend for the [C]ourt to consider their application as one for summary judgment." Village Defendants further contend that they were not given a reasonable opportunity to present all evidence relevant to a summary judgment motion, and that their motion should be treated as one where the "movant made clear that they did not consider their motion as one for summary judgment." (Id. at 6 (citing Nat'l Ass'n of Pharm. Mfrs., Inc. v. Ayerst Labs., 850 F.2d 904 (2d Cir.1988))). Plaintiff argues that the motion was properly construed as one for summary judgment. (Pl. Opp'n 15-17.)
It is within a district court's discretion to convert a motion to dismiss or a motion for judgment on the pleadings to a motion for summary judgment when the parties have presented matters outside the pleadings, provided that the parties are given reasonable notice and an opportunity to present pertinent material before such a motion is converted. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.1999) (discussing conversion of motion to dismiss
Village Defendants' argument is unavailing and disingenuous. Although Village Defendants never filed a statement of undisputed facts pursuant to Local Rule 56.1 in support of their motion,
In addition, because Village Defendants invited the Court to rely on materials out-side the pleadings, and were on notice that Plaintiff planned to treat the motion as one
In the R & R, Judge Brown relied on evidence submitted by Plaintiff to find that there were genuine issues of material facts in dispute that precluded summary judgment on Plaintiff's Section 1983 claims against the individual Defendants, as well as Plaintiff's state law false arrest and abuse of process claims. In particular, Judge Brown relied on Plaintiff's exhibits 2, 3, 4, 7, 10, 12, 16-19, 30 and 41, which documents correspond to exhibits 3, 45, 50 and 79 in Plaintiff's proposed pre-trial order, the transcript of Plaintiff's examination taken pursuant to Rule 50-h of the General Municipal Law, and Affidavits of Plaintiff and of Anthony Fore, a proposed witness. In so considering, Judge Brown did not explicitly address Village Defendants' argument, articulated to him for the first time in their reply brief in further support of their dispositive motion, that "most of the documents cited in Plaintiff's Opposition papers as bearing facts were not produced and therefore should not be considered [pursuant to Rule 37 of the Federal Rules of Civil Procedure]."
Village Defendants now argue that Plaintiff was precluded from relying on any document not produced prior to the close of discovery, contending that they will be substantially harmed if Plaintiff is permitted to "utilize evidence that was not disclosed as a basis for defeating a dispositive motion." (Def. Obj. 7-8.) They contend that "[t]he Court did not accept the Plaintiff's justifications for not providing discovery and, on three (3) occasions affirmed its decision to close discovery as of February 7, 2013." (Id. at 8.) Village Defendants argue that they will be prejudiced if Plaintiff is allowed to "bypass" discovery and use evidence that was not disclosed as a basis for defeating a dispositive motion, stating that such a practice is the type of "sandbagging" discovery rules are meant to prohibit. (Id.)
Plaintiff argues that Village Defendants' current arguments were presented to Judge Boyle and decided in his May 23, 2013 Order. (Pl. Opp'n 5.) Plaintiff contends that Judge Boyle granted him leave to use documents from the criminal action in opposition to the motion for summary judgment, and urges the Court to review Judge Boyle's May 23, 2013 Order for clear error. (Id.) Plaintiff further argues that preclusion is a harsh remedy that should not be imposed under these circumstances, where Plaintiff did produce the documents in question—although the production was belated—Defendants suffered no prejudice, Plaintiff was not acting in bad faith, and the evidence is critical to Plaintiff being able to maintain his lawsuit.
Under Rule 37 of the Federal Rules of Civil Procedure, if a party fails to provide information or identify witnesses as required by Rule 26(a) or (e), the party
The Second Circuit has identified four factors to be considered on a motion to preclude evidence pursuant to Rule 37: (1) the party's explanation for its failure to comply, (2) the importance of the testimony of the precluded witnesses or of the evidence, (3) any prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony or evidence, and (4) the possibility of a continuance. Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir.2006) (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.2006)); Kam Hing Enters., 359 Fed. Appx. at 237. Bad faith is not required to merit preclusion under the rule, but can be taken into account as an explanation for a party's failure to comply with discovery orders. Design Strategy, 469 F.3d at 296.
As an initial matter, Village Defendants' objection reiterates arguments made to Judge Boyle at the 2013 status conferences and to Judge Brown in Village Defendants' reply brief in support of their dispositive motion, and thus clear error is the appropriate standard of review for any previous preclusion ruling. However, because Judge Brown did not expressly address Village Defendants' arguments in the R & R, the Court will conduct the requisite inquiry de novo.
The first two factors of the Second Circuit's test weigh strongly against excluding
As to prejudice, or whether the failures in discovery were "harmless,"
Finally, because of the time frame involved and the extent of the discussion between the parties regarding the disputed discovery, whether a continuance is possible is less relevant, and does not out-weigh the other factors. While the Court is "frustrate[ed] with the lackadaisical manner in which this case was litigated," such frustration is not grounds to conclude that precluding nearly all of Plaintiff's evidence is warranted under the circumstances. See World Wide Polymers, 694 F.3d at 160. Given these considerations, the Court finds that Judge Brown's implicit decision not to exclude Plaintiff's evidence as to this motion
As to Judge Brown's substantive findings, Village Defendants only challenge his conclusion that there were genuine disputes of fact as to whether Wing and Pettus "instigated" Plaintiff's arrest.
In assessing Fourth Amendment false arrest claims brought under Section 1983, courts generally look to the law of the state in which the arrest occurred. Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir.2007). To prevail on a false arrest claim under New York law, a plaintiff must prove that: "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) (alteration and internal quotation marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.2012) (outlining the elements of false arrest claims). A third party may not be liable for false arrest if he merely reports a suspected crime, and the police act independently to investigate that crime. King v. Crossland Say. Bank, 111 F.3d 251, 257 (2d Cir.1997); see also Vlach v. Staiano, 604 Fed.Appx. 77, 78 (2d Cir.2015) (holding that defendant, a private individual, cannot be liable for false arrest even if he provided materially incomplete information to State Police, which resulted in plaintiff's arrest). However, if the evidence indicates that the third party intended or instigated the plaintiff's arrest, liability may be extended. King, 111 F.3d at 257.
Village Defendants misconstrue Judge Brown's findings and the case law supporting Judge Bown's conclusion. Village Defendants contend that Judge Brown's reliance on Anilao v. Spota, 774 F.Supp.2d 457 (E.D.N.Y.2011), was misplaced. They argue that in Anilao, "the Court held that a defendant cannot be held liable for affirmatively instigating or procuring a false arrest when he merely provides information to the police." (Def. Obj. 9.) While it is correct that the court in Anilao did note this rule, the opinion continued: "a successful false arrest claim [against someone other than the arresting police officer] requires allegations that the private defendant affirmatively induced or importuned the officer to arrest. Thus, where an individual instigates an arrest and does so based on knowingly false information, that individual may be held liable for false arrest." Anilao, 774 F.Supp.2d at 510-11 (internal quotation marks and citations omitted) (denying private defendants' motion to dismiss false arrest claim, except as to two particular defendants).
Judge Brown found that the record indicated that Powell contacted Pettus, his father and Village of Hempstead Trustee, about the March 7, 2010 incident, that Pettus called Wing, the Village of Hempstead Police Chief, and Wing called someone at the Nassau County Police Department. (R & R 25) When Plaintiff was interrogated prior to his arrest, he was told that the arrest was "coming from `down there,' referring to the [Hempstead Police Department], and that the arrest was `political.'" (Id.) Based on this evidence, a reasonable jury could conclude that Pettus and Wing contacted the Nassau County Police Department in order to induce Plaintiff's arrest. See McNamara v. City of New York, No. 06-CV-5585, 2009 WL 735135, at *4 (S.D.N.Y. Mar. 20, 2009) (denying motion for summary judgment
The Court has reviewed the unopposed portions of the R & R, and, finding no clear error, pursuant to 28 U.S.C. § 626(b)(1), the Court adopts Judge Brown's recommendations that the Court (1) dismiss as withdrawn Plaintiff's claims of defamation and intentional infliction of emotional distress, (2) grant summary judgment as to Plaintiff's Monell claim against the County of Nassau and Village of Hempstead, (3) deny summary judgment as to Plaintiff's Section 1983 claims for false arrest against all other individual Defendants, First Amendment retaliation against Wing and Pettus, conspiracy against Wing, Pettus, Yao, Decaro, Dorsi and Skrynecki, and Plaintiff's state law claims for false arrest against all other individual Defendants and abuse of process against Pettus and Wing, and (4) deny Plaintiff's motion to amend the Complaint as moot.
For the foregoing reasons, the Court adopts Judge Brown's R & R in its entirety. The Court grants the motions for summary judgment with respect to the Monell claim against the County of Nassau and the Incorporated Village of Hempstead, dismisses Plaintiff's claims of defamation and intentional infliction of emotional distress under New York State law as withdrawn, and sua sponte dismisses, without prejudice, all claims against John Does # 1-5, and orders Plaintiff to show cause within twenty (20) days as to why the action should not be dismissed against Powell for failure to effectuate service. The Court denies the motions for summary judgment as to Plaintiff's Section 1983 claims for false arrest against all individual Defendants, First Amendment retaliation against Wing and Pettus, conspiracy against Wing, Pettus, Yao, Decaro, Dorsi and Skrynecki, and Plaintiff's state law claims for false arrest against all individual Defendants and abuse of process against Pettus and Wing. Plaintiff's motion for leave to amend is denied as moot.
SO ORDERED.
While the Court agrees with Judge Boyle's analysis that this case is a "true mess," (see May 14 Tr. 27:13-15), it appears that Village Defendants were on notice of the exhibits' existence and Plaintiff's intention to use them in this action, and were at some point provided with copies of the documents.
