ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable David N. Hurd. Presently before the court is the defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 47). Plaintiff has responded in opposition to the motion.
On March 21, 2014, defendants filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 24). After reviewing the motion to dismiss, the plaintiff's response, the replies,
After reviewing all the submissions, I recommended denying the defendants' first motion for summary judgment because they did not properly support the reason for the search of which plaintiff complained. (Dkt. No. 39 at 8-11). Defendants have now made a second motion for summary judgment to which they have added affidavits and other information relative to the search of plaintiff's house and his subsequent detention. The court will discuss the additional material below. Some of the facts are repeated from this court's original recommendation for purposes of continuity and clarity.
In plaintiff's civil rights complaint, he alleges that on August 21, 2009, he was adjudicated a dangerous sex offender requiring confinement in a secure treatment facility, in a state court proceeding brought pursuant to Article 10 of the Mental Hygiene Law.
On July 24, 2013, at approximately 8:40 a.m., plaintiff appeared at the Utica Community Supervision Office for his scheduled appointment with his parole officer. (Pezdek Aff. ¶ 6). Parole Officer ("PO") Orsaio "became suspicious" of plaintiff's possible "negative behavior." PO Orsaio recovered a piece of paper with "`young girl web addresses'" written on it from the trash can where plaintiff had been waiting prior to his appointment. (Id.) PO Orsaio also re-photographed plaintiff because he had changed his appearance by cutting all his hair off. (Id.) Because of this suspicious behavior, PO Orsaio determined that plaintiff's residence should be inspected to ensure that he was complying with his SIST order. Defendants have attached PO Orsaio's contemporaneous notes as Exhibit C.
Based upon the information obtained during the plaintiff's appointment, and at PO Orsaio's request, defendant Pezdek and defendant Mason, accompanied by Utica Police Officers (the "Impact Team"), went to plaintiff's home and conducted a search on July 24, 2013. (Pezdek Aff. ¶ 8). Based upon plaintiff's signed SIST agreement, the defendants did not believe that a search warrant was required. (Pezdek Aff. ¶¶ 7, 8 & Ex. B). Defendant Pezdek has attached his and defendant Mason's reports of the result of the search. (Pezdek Aff. ¶ 8 & Exs. D, E) (Dkt. Nos. 47-5, 47-6). During the search, the officers found an "undocumented cell phone" in plaintiff's front pocket as well as a piece of paper with a "number of explicit website[s] that appear to be porn related." (Def.s' Ex. D).
At the time of the search, plaintiff conceded that he had not reported the extra cell phone to PO Orsaio, but claimed that he "found the list of websites in the attic." However, a search of plaintiff's bedroom resulted in the discovery of a pad of paper "that appears to be the same as what the websites were written on." (Id.) A search of the plaintiff's extra cell phone revealed that he had web access on the "undocumented" telephone, together with a Facebook page in the name "Charles Wayne." (Id.) Defendant Pezdek's report states that he "SPOKE with SPO JOLMA WHO ISSUED WARRANT."
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the non-movant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (citing Celotex Corp., 477 U.S. at 23). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Additionally, while a court "`is not required to consider what the parties fail to point out,'" the court may in its discretion opt to conduct "an assiduous view of the record" even where a party fails to respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted).
"The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy." United States v. Newton, 369 F.3d 659, 665 (citing U.S. Const. amend. IV). The touchstone in evaluating the permissibility of any search is reasonableness. United States v. Lifshitz, 369 F.3d 173, 178 (2d Cir. 2004). Reasonableness "is determined `by assessing, on the one hand, the degree to which [a search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" United States v. Knights, 534 U.S. 112, 118-19 (2001) (citation omitted). Generally, reasonableness "requires a warrant and probable cause." United States v. Julius, 610 F.3d 60, 64 (2d Cir. 2010). However, the Supreme Court has recognized that a warrantless, suspicionless search may be justified "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted).
One such exception is for a state's operation of a probation system. Such a program "presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987). As the Supreme Court has explained, searches of probationers "are necessary to the promotion of legitimate governmental interests" based on "the State's dual interest in integrating probationers back into the community and combating recidivism."
Probationers and parolees, simply by virtue of their status, have diminished reasonable expectations of privacy-they enjoy only a conditional liberty dependent on their adherence to special probation restrictions. See Griffin, 483 U.S. at 874. Probation "is one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service." Samson v. California, 547 U.S. 843, 850 (2006) (citations and internal quotation marks omitted). The Court further explained that "[o]n this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." Id. As described above, plaintiff was subject to a regimen of SIST.
This already diminished privacy interest enjoyed by individuals under supervision is further diminished when an individual has consented, in writing, to certain conditions: "persons on supervised release who sign such documents manifest an awareness that supervision can include intrusions into their residence and, thus, have a severely diminished expectation of privacy." United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). Individuals subject to these probationary restrictions can, therefore, be subjected to burdens upon their privacy that would be unconstitutional were they applied to the general citizenry.
As I stated in my prior report-recommendation, when plaintiff was released from confinement, he was placed on SIST, under the jurisdiction of DOCCS. His actual expectation of privacy was significantly diminished based on this status alone. Moreover, he signed a condition explicitly authorizing the search of his person, residence and property further diminishing his expectation of privacy.
The additional evidence submitted by defendants shows that the visit and the search were clearly related to the performance of the parole officers' duties. Plaintiff raised his parole officer's suspicions when he appeared for his scheduled appointment, based on the piece of paper found in the garbage near where plaintiff was waiting for his appointment in which "young girl web addresses" was written. PO Orsaio also noticed that plaintiff had altered his appearance. Based upon this suspicious behavior it was not unreasonable for PO Orsaio to request that defendants Pezdek and Mason visit the plaintiff's home to execute a search. This incident was clearly not random, and the parole officers' duty was to make sure that plaintiff was not violating the SIST Order. Once the material forming the bases for potential violations was found, the officers called their superior officer to obtain authorization for a parole warrant to arrest plaintiff. Thus, neither the search, nor the arrest violated plaintiff's constitutional rights.
The court notes that plaintiff's original argument against dismissal included the claim the search was not conducted by
In addition, in my prior recommendation, I observed that the presence of these other individuals would not make an otherwise reasonable search unreasonable. See, e.g., United States v. Reyes, 283 F.3d 446, 463 (2d Cir. 2002) ("[I]t is difficult to imagine a situation where a probation officer conducting a home visit in conjunction with law enforcement officers, based on a tip that the probation officer has no reason to believe conveys intentionally false information about a supervisee's illegal activities would not be pursuing legitimate supervised release objectives."). Plaintiff himself attaches the DOCCS Directive relating to searches and seizures of a parolee's person or property. DOCCS Directive No. 9404. In this Directive it specifically states that "A PO may conduct
Plaintiff also claims that the search itself was "an exaggerated response" to a governmental interest. (Dkt. No. 75-1 at 6). Plaintiff makes this statement because he believes that the officers damaged some of his property during the search. (Id. at 4). However, some property damage caused during a lawful search is not per se unreasonable under the Fourth Amendment. Koller v. Hilderbrand, 933 F.Supp.2d 272, 278-79 (D. Conn. 2013). The Supreme Court has recognized that officers executing search warrants "`on occasion must damage property in order to perform their duties.'" Id. (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). See also Cody v. Mello, 50 F.3d 13, 16 (2d Cir. 1995) (same). Before any liability may be imposed for property damage, it must be established that the officers acted unreasonably or maliciously. Dockery v. Tucker, No. 97-CV-3584, 2008 WL 2673307, at *10 (E.D.N.Y. June 26, 2008). Mere negligence is not enough. Id.
In this case, plaintiff claims, without elaboration, that the Impact Team "tore Plaintiff's residence apart; throwing his personal property and other belongings around, trashing the apartment." (Dkt. No. 75-1 at 4). However, other than these conclusory allegations, which essentially describe the disarray which may follow the execution of a search, there is no indication that the defendants or the Impact Team violated plaintiff's constitutional rights in executing the search. Generally, determining whether a particular instance of property damage was "unreasonable or malicious," is ordinarily not appropriate for summary judgment. See Koller, 933 F. Supp. 2d at 279 (courts have been reluctant to resolve the issue on summary judgment) (citing cases). However, where a plaintiff has not produced any documentary evidence to support his allegations, he fails to meet his burden to set out specific facts showing a genuine issue for trial. Vaher v. Town of Orangetown, NY, No. 10 Civ. 1606, ___ F. Supp. 3d ___, 2015 WL 5602848, at *12 (S.D.N.Y. Sept. 23, 2015) (distinguishing Koller, supra) (citing cases).
In this case, the defendants were looking for papers, journals, or any indication that plaintiff was viewing, or intended to view, pornographic websites by writing down the addresses of those sites. Defendants were also concerned about extra telephones that were not reported to plaintiff's parole officer. These items are small and could be hidden anywhere in plaintiff's home. The court notes that plaintiff also told the officers that he "found" the paper with the website addresses written on it in the "attic." Thus, the officers were justified in searching through the house for what could have been small, hidden items. As it turned out, plaintiff had lied about where he obtained the paper, and the officers found the pad on which the addresses had been written in plaintiff's bedroom. Plaintiff has presented no evidence that the defendants wantonly destroyed property or conducted the search "in a manner inconsistent with its professed purpose." Vaher, supra. Thus, the fact that plaintiff's property may have been thrown around or his house left in disarray, does not state a constitutional claim.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Until the Second Circuit holds that Samson changes the analysis of searches such as that conducted of plaintiff, who was not a parolee, this court will follow Second Circuit precedent and evaluate whether the search satisfies the more protective test that has been used by the Second Circuit applying Huntley.