NORMAN A. MORDUE, Senior District Judge.
Plaintiff pro se Nakia Chaney ("Plaintiff") brings this action under 42 U.S.C. § 1983 alleging various claims arising out of encounters with the Defendant law enforcement officers. (Dkt. No. 1). Currently before the Court are Defendants' motions for summary judgment, (Dkt. Nos. 165, 167, 168), which Plaintiff has opposed, (Dkt. No. 176, 177, 178). For the reasons that follow, Defendants' motions are granted in part and denied in part.
Plaintiff commenced this action on September 30, 2016, asserting at least nine claims for alleged violations of his constitutional rights by known and unknown individuals. (Dkt. No. 1). Specifically, Plaintiff first alleges that Defendants Schenectady County, Schenectady County Sheriff's Department, Schenectady County Jail, and Officers Sinatra, Glasser, Van Hoesen, Reaulo, and other unknown John Does (collectively, the "Schenectady County Defendants") conducted "unlawful [ ] visual body cavity searches" on Plaintiff's person prior to his admission to Schenectady County Jail in 2013 and 2014. (Id., p. 22).
Plaintiff claims that the Albany Police Department ("APD"), Police Chief Steven Krokoff, and Officers Gavigan, Gorleski, Kuhn, Meehan, Kisling, Staley, James, Wilson and Seeber (collectively the "Albany Defendants") conducted "unlawful [ ] visual body cavity searches" on Plaintiff's person at the Albany police station. (Dkt. No. 1, p. 22). Plaintiff further alleges that the Albany Defendants violated his constitutional rights in August 2014 and October 2014 for separate incidents involving alleged "unlawful gun point stop[s], arrest or frisk, forcible touching [], sexual assault, excessive force, and abuse of legal process." (Id.). Plaintiff claims that the Albany Defendants violated his right to privacy through their unlawful touching of his "private parts" during several alleged strip searches. (Id., p. 23).
Finally, Plaintiff alleges that Defendant Alan Bell of the Niskayuna Police Department, along with Defendant Gavigan, conducted "unlawful [GPS] tracking of [Plaintiff's] every move for over 9 months without a warrant. . . ." (Dkt. No. 1, pp. 10, 23). Specifically, Plaintiff claims that Defendant Bell "requested [that] [D]efendant Scott Gavigan use the unlawful GPS tracking device," and "controlled the GPS device in the Town of Niskayuna [while] Defendant Scott Gavigan covered the GPS device for the Albany Police without a warrant [ ] or probable cause." (Id., p. 10).
In November 2017, the Court granted the Albany County Defendants' motion for judgment on the pleadings, dismissing them from this action. (Dkt. No. 110, pp. 7-8). In that same order, the Court denied Defendant Alan Bell's motion to dismiss. (Id., pp. 11-14). On December 15, 2017, the Court granted Plaintiff's motion to substitute Joseph Glasser for Defendant Schenectady County Sheriff Badge #SCP 065; and granted Plaintiff's motion to substitute APD Officers Daniel Kuhn, Brian J. Kisling, Jason A. Wilson, Seeber, Matthew Staley, and Daniel James for "Defendant John Does Albany Police." (See Dkt. No. 111).
While the Court "is not required to consider what the parties fail to point out," in deference to Plaintiff's pro se status and out of an abundance of caution, the Court has nevertheless conducted "an assiduous review of the record" to determine whether there is evidence that might support any of Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). The Court has construed the following undisputed facts in the light most favorable to the Plaintiff.
On December 28, 2013, Plaintiff was a passenger in a vehicle driven by Lorenzo McGill. (Dkt. No. 165-28, p. 114). McGill led police on a high-speed chase after he was observed driving without headlights. (Id. see also Dkt. No. 165-29, ¶ 4). The chase ended at 767 Westmoreland Drive in the Town of Niskayuna, where Plaintiff lived at the time. (Dkt. No. 165-28, pp. 117, 123). There, Plaintiff was involved in a brief struggle with Schenectady County Sheriff's Deputy Glasser, who used a taser to subdue Plaintiff. (Dkt. No. 165-29, ¶ 4). Plaintiff appeared in court and was released on bail that same night. (Dkt. No. 165-28, p. 125). Plaintiff did not receive medical treatment for any injuries while in police custody, nor did he seek medical treatment following his release. (Id., pp. 127-28). Plaintiff was later charged with obstructing governmental administration and resisting arrest; he pled guilty to disorderly conduct in full satisfaction of those charges. (Dkt. No. 165-28, p. 116; Dkt. No. 165-29, ¶ 9; see also Dkt. No. 165-36, pp. 3-4; Dkt. No. 165-37, p. 2).
On August 14, 2014, Plaintiff was a passenger in a vehicle driven by his friend, Jonathan Smith. (Dkt. No. 165-28, p. 25). APD officers stopped the vehicle after Smith failed to use a turn signal. (Dkt. No. 167-2, p. 4). The police report states that APD officers then observed Smith throw three glassine envelopes, each containing a quantity of heroin, out of the vehicle. (Id.). Smith was arrested and charged with criminal possession of a controlled substance and criminal possession of a hypodermic instrument. (Id.). Plaintiff was not charged with any crime, and he was released from the scene. (Dkt. No. 165-28, p. 45).
On October 13, 2014, APD Officer Gavigan received information from a confidential informant that Plaintiff and the informant would be transporting heroin to the Albany area from New Jersey. (Dkt. No. 167-2, p. 93). When Plaintiff and the informant exited the highway in Albany, APD officers stopped the vehicle and ordered Plaintiff to show his hands and exit the vehicle. (Id., pp. 93-94). The Arrest Report indicates that APD recovered 198 glassine envelopes from the left pocket of Plaintiff's coat located in the trunk of the vehicle. (Id., p. 6). Each envelope contained a quantity of heroin, with an aggregate weight of 4 grams. (Id.). Plaintiff was later charged and convicted of Criminal Possession of a Controlled Substance in the Third Degree in violation of Penal Law § 220.16(1). (Dkt. No. 167-2, p. 7).
In 2014, Plaintiff was convicted of drug crimes in Niskayuna Town Court based on activities unrelated to this action. (Dkt. No. 165-28, p. 46). Plaintiff was sentenced to serve 30 consecutive four-day weekends in Schenectady County Jail. (Id.). While serving that sentence, Plaintiff was required to submit to a "visual body cavity search" before each admission to the Schenectady County Jail. (Dkt. No. 165-28, pp. 15-16). Plaintiff was admitted to the Schenectady County Jail and searched according to the County's admission policy on at least six occasions in August and September 2014. (Dkt. No. 165-38, ¶ 4).
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A fact is "material" if it "might affect the outcome of the suit under the governing law," and is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
If the moving party meets this burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Further, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and the grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citing Dister v. Continental Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case." Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). To that end, "sworn statements are more than mere conclusory allegations subject to disregard [ ]; they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion." Id. at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
Further, where a plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, a pro se party's "`bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Jordan v. New York, 773 F.Supp.2d 255, 268 (N.D.N.Y. 2010) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Plaintiff asserts a number of claims against each of the Defendants. The Court has construed Plaintiff's Complaint liberally, and will address each of the Defendants' arguments for summary judgment in turn.
Plaintiff alleges that on December 28, 2013, Officer Glasser of the Schenectady County Sherriff's Department used "excessive force [by] unlawfully tasering plaintiff while [in] handcuffs." (Dkt. No. 1, p. 23). The Schenectady Defendants counter that the force deployed by Officer Glasser was proper under the circumstances, and they argue that "Plaintiff is estopped from claiming that he was a passive recipient of police violence." (Dkt. No. 165-43, pp. 6-11).
"The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). To succeed on an excessive force claim, "a plaintiff must ultimately demonstrate that the defendant's use of force was objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Hulett v. City of Syracuse, 253 F.Supp.3d 462, 491 (N.D.N.Y. 2017); see also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004). The "objective reasonableness" inquiry is "case and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake." Tracy, 623 F.3d at 96 (citing Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004)).
In evaluating an excessive force claim, courts consider: "(1) the nature and severity of the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). "[A] court must evaluate the record from the perspective of a reasonable officer on scene, rather than with the 20/20 vision of hindsight." Hulett, 253 F. Supp. 3d at 491 (citing Tracy, 623 F.3d at 96; Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). "[G]ranting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable fact finder could conclude that the officers' conduct was objectively unreasonable." Amnesty Am., 361 F.3d at 123.
Here, the parties have offered vastly different versions of the events that occurred after the police chase on December 28th. Plaintiff claims that he "did not run [from police] and had no reason to run," and adds that he was "snatched out of the vehicle by several officers at gun point [sic] flanked by several officers and immediately handcuffed and tasered." (Dkt. No. 176, p. 2). These allegations are consistent with the Complaint, and align with his recollection of events during his deposition testimony. (Dkt. No. 1, p. 7; see also Dkt. No. 165-28, pp. 117-28). According to Plaintiff, he was hit by the taser in the leg near his hamstring, causing bleeding and leaving a scar. (Dkt. No. 165-28, pp. 120-21).
Officer Glasser recalls the encounter quite differently, asserting that when the chase ended at 767 Westmoreland Drive:
(Dkt. No. 165-29, ¶¶ 4-5, 8). Officer Glasser's recollection appears to be consistent with his Arrest Report and Taser Use Report from the night of the incident. (See Dkt. No. 165-33, p. 2; Dkt. No. 165-30, p. 2).
Aside from these accounts, the parties offer no additional evidence to support their opposing versions of events. At a minimum, there are material issues of fact as to whether Plaintiff ran and resisted arrest, where the taser struck him, and whether it did so before or after he was in handcuffs, all of which affect the reasonableness of the use of force. Weighing the competing evidence and the parties' credibility is a task reserved for the trier of fact. Accordingly, the disputed issues of material fact preclude resolution as a matter of law, and the Schenectady County Defendants' motion for summary judgment on this claim must be denied.
Plaintiff also appears to claim that he was unlawfully denied medical attention by the Schenectady County Defendants following his arrest on December 28, 2013. (Dkt. No. 1, p. 7). Plaintiff alleges that he required medical treatment because "he became extremely hot, nervous, heart racing [sic], shocked scared weird feeling but was denied initial medical treatment to document complaints." (Dkt. No. 176, p. 2).
A claim for deliberate indifference to a pre-trial detainee's serious medical needs is analyzed under the Fourteenth Amendment, and requires a two-part showing: (1) that Plaintiff had a serious medical need for treatment; and (2) that the Schenectady County Defendants acted with deliberate indifference to such needs. See Gabriel v. County of Herkimer, 889 F.Supp.2d 374, 392 (N.D.N.Y. 2012) (citing Caiozzo v. Koreman, 581 F.3d 63, 71-72 (2d Cir. 2009)). The first element requires "a condition of urgency, one that may produce death, degeneration, or extreme pain." Bruno v. City of Schenectady, 727 F. App'x 717, 720 (2d Cir. 2018) (citing Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)). The second element is met when "the official `acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.'" Id. (quoting Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)).
Here, Plaintiff offers no evidence of a serious medical condition capable of producing extreme pain, degeneration, or death. (See generally Dkt. No. 1; Dkt. No. 176). Plaintiff's claim that he was "extremely hot," "nervous," and "shocked" falls far short of the necessary showing. See Bradley v. Village of Greenwood Lake, 376 F.Supp.2d 528, 535 (S.D.N.Y. 2005) (dismissing excessive force claim against an arresting officer who kicked the plaintiff in the stomach causing temporary nausea and an abdominal scratch); Esmont v. City of New York, 371 F.Supp.2d 202, 213-15 (E.D.N.Y. 2005) (dismissing an excessive force claim where the arresting officer caused the plaintiff to bump her head as she was placed in patrol car, resulting in a headache; left her in hot patrol car for ten minutes, resulting in profuse sweating; and applied handcuffs too tightly, resulting in bruising, swelling and unsubstantiated claims of nerve damage); Roundtree v. City of New York, 778 F.Supp. 614, 622 (E.D.N.Y. 1991) (dismissing an excessive force claim where the arresting officer pushed the plaintiff into a patrol car causing alleged pain and suffering).
Further, Plaintiff admits that he did not seek medical attention for his alleged medical needs following his release, and he does not claim any lasting physical injuries from the December 28th encounter. (See Dkt. No. 165-28, p. 128). Indeed, courts have found that a plaintiff's failure to seek medical attention after being released from custody undermines any claim of serious pain or that urgent care was needed. See, e.g., Carey v. Maloney, 480 F.Supp.2d 548, 557-58 (D. Conn. 2007) (dismissing a plaintiff's claim for denial of medical treatment where the plaintiff never requested medical attention from the police, and did not seek medical attention until nearly twenty-four hours after his release from custody); see also Rivera v. Goord, 253 F.Supp.2d 735, 756 (S.D.N.Y. 2003) ("Evidence that a plaintiff has refused medical care has been found to effectively rebut claims of deliberate indifference to serious medical needs."). After careful review of the record, the Court concludes that there are no facts from which a jury could find that Plaintiff had a serious medical need on December 28, 2013.
Moreover, even if Plaintiff could show a serious medical need, he has not presented any evidence that the Defendant officers ignored or rejected a specific request by Plaintiff for medical attention. Indeed, there is no evidence that the Schenectady County Defendants were even aware of Plaintiff's alleged serious medical condition. Thus, the record offers no facts whatsoever to show deliberate indifference by the Defendant officers.
Accordingly, because no reasonable jury could return a verdict in Plaintiff's favor for denial of medical attention, the Schenectady County Defendants' motion for summary judgment is granted on this claim.
Next, Plaintiff alleges that he was subjected to unlawful visual body cavity searches performed by the Schenectady County Defendants prior to each admission for his weekend stays at the Schenectady County Jail. (Dkt. No. 1, p. 22). Plaintiff adds that the "schenectady county jail admission policy in which [Plaintiff] was forced to undress and spread apart his rectal and lift up his penis was without justification as there was no reason to believe that weapons or contraband was being concealed on or in the body and therefore violated [Plaintiff's] constitutional rights." (Id., pp. 19-20). Plaintiff claims that Defendants Van Hoesen, Reaulo, and Sinatra performed an "unlawful admission visual body cavity search" on Plaintiff on several occasions in August, September, and October of 2014. (Id.). Plaintiff also alleges that unidentified John Does of the Schenectady County Sherriff's Department performed unlawful visual body cavity searches in December 2013, and May and August of 2014. (Id.). Defendants acknowledge that Plaintiff was admitted to the Schenectady County Jail on six separate occasions in August and September 2014. (Dkt. No. 165-38, ¶ 4).
It is well-established that "[t]he general practice of strip searching a detainee during housing searches and on the way to and from court appearances is not unconstitutional, even if the detainee is accused only of a misdemeanor." Thompson v. City of New York, No. 16-CV-824, 2017 WL 1929552, at *2, 2017 U.S. Dist. LEXIS 70423, at *5 (S.D.N.Y. May 9, 2017) (citing cases). The Supreme Court has recognized that "correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities." Florence v. Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318, 328 (2012). In Florence, the Supreme Court held that a county jail did not violate prisoners' rights when it permitted visual inspection body cavity searches, without reasonable suspicion, prior to the prisoners' introduction to a general population unit. Id. at 339. As in Florence, Plaintiff's allegations of unlawful searches relate specifically to "visual body cavity searches" conducted upon his admission to the Schenectady County Jail. (See, e.g., Dkt. No. 1, p. 7).
In support of summary judgment, the Schenectady County Defendants argue that Plaintiff's claims have been expressly rejected by the Supreme Court, and that his allegations "fail[ ] to show that the alleged admission visual strip searches violated a clearly established law in the Second Circuit." (Dkt. No. 180-4, pp. 11-12). According to Captain Gregory Cufari of the Schenectady County Sherriff's Office, "[e]ach time the plaintiff entered the jail he was a security risk because he was coming off the street and going into the jail's general population. By coming into the jail from the street, plaintiff had the ability [ ] to bring into the jail such items as weapons, drugs or other contraband." (Id.). In response, Plaintiff argues that "there was no reason to conduct a cavity search after plaintiff cleared all boss chairs and handwands without detection," and he contends that "[a]ny cavity searches was only to humiliate as there was no reasonable suspicion as plaintiff cleared security and unrelated to legitimate penological interests." (Dkt. No. 176, p. 4).
On this claim, the Court's previous ruling dismissing Plaintiff's claim against the Albany County Defendants applies with equal force. (See Dkt. No. 110, pp. 7-8). Plaintiff alleges that the searches he underwent at the Schenectady County Jail were unconstitutional because the Schenectady County Defendants did not have reasonable suspicion of concealed contraband— precisely the same claim rejected by the Supreme Court in Florence. Again here, Plaintiff's argument fails "because Florence permits correction officers to strip search detainees without particularized suspicion . . . and recognizes that strip searches are specifically `designed to uncover contraband that can go undetected by a patdown, metal detector, and other less invasive searches.'" Thompson, 2017 WL 1929552, at *2, 2017 U.S. Dist. LEXIS 70423, at *6 (quoting Florence, 566 U.S. at 334). That includes searches involving visual inspection of body cavities. Florence, 566 U.S. at 340-41. Moreover, there is no evidence that the searches "did not serve a legitimate penological purpose," or that they were "instead designed to intimidate, harass, or embarrass [Plaintiff]." See Smith v. City of New York, No. 14-CV-5934, 2015 WL 3929621, at *2, 2015 U.S. Dist. LEXIS 81337, at *7 (S.D.N.Y. June 17, 2015).
Accordingly, Plaintiff's claims of unlawful searches fail as a matter of law, and the Schenectady County Defendants' motion for summary judgment on these claims is granted. Plaintiff's claims against the Schenectady County Jail and Officers Van Hoesen, Reaulo, Sinatra, and other "Unknown John Does from Schenectady County Jail" are dismissed with prejudice.
Next, Plaintiff alleges that "[t]he wrongful conduct alleged herein in regards to the admission visual body cavity searches has been conducted generally upon all members of the plaintiff class in that the strip searches were conducted pursuant to a long-established plan, policy, or procedure of the [Schenectady County Sherriff.]" (Dkt. No. 1, p. 20). This could be construed as a municipal liability claim against Schenectady County pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694-95 (1978). In general, municipalities are responsible only for "their own illegal acts," Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986), and are not vicariously liable for civil rights violations perpetrated by their employees. Monell, 436 U.S. at 691. In order to sustain a claim for municipal liability under Section 1983, a plaintiff must show that he suffered a constitutional violation in the first place, and that the violation resulted from an identified municipal policy or custom. Monell, 436 U.S. at 694-95. The same is true for claims against other government entities such as the County of Schenectady. See Sheriff's Silver Star Ass'n of Oswego County, Inc. v. County of Oswego, 56 F.Supp.2d 263, 266 (N.D.N.Y. 1999).
As noted by the Schenectady County Defendants, Plaintiff's Monell claim is limited to the alleged policy and practice of conducting visual body cavity searches upon admission to the Schenectady County Jail. Because the Court has already determined that the County's pre-admission search practices for the jail did not violate the Constitution, Plaintiff's Monell claim fails for the same reason. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (municipal liability under Monell may only lie where there is an underlying constitutional violation). Accordingly, the Schenectady County Defendants' motion for summary judgment on Plaintiff's Monell claim is granted.
Plaintiff alleges that Defendant Alan Bell, a sergeant with the Niskayuna Police Department, "requested [that] Defendant Scott Gavigan use the unlawful GPS tracking device," and "controlled the GPS device in the Town of Niskayuna . . . without a warrant [ ] or probable cause." (Dkt. No. 1, pp. 10, 23). Plaintiff claims that "[t]he unlawful GPS tracking on plaintiff [sic] vehicle or cellphone was done without a warrant," resulting in a "massive invasion of [his] privacy." (Id., p. 20). Plaintiff admits that these allegations are solely based on logs from the Albany-area license plate reader ("LPR") system, which identify dates, times, and locations when Plaintiff's vehicle was observed on public roads. (Dkt. No. 165-28, p. 141). Plaintiff testified that he is aware that Albany has cameras stationed throughout the city, and that these cameras are used to "record everything that goes by them," including license plates on passing vehicles. (Id., pp. 133-34). Plaintiff also acknowledged that he does not believe that any LPR technology was placed directly on his vehicle. (Id., pp. 135-37). Nonetheless, he argues that the use of numerous cameras throughout the city operated like a tracking device for law enforcement "because it continuously tracks and it works the same way as the GPS works." (Id.).
Defendant Bell argues that summary judgment is appropriate "because there is no evidence that Defendant Bell placed or directed to be placed a GPS device on Plaintiff's vehicle(s) and/or cellphone." (See Dkt. No. 168-32, pp. 6-9). Defendant Bell contends that Plaintiff's allegations about unlawful GPS tracking stem from a misunderstanding of the LPR technology. (See id.). According to Defendant Bell, "it is without question that [LPRs] are lawful, constitutional technology and may be used by law enforcement as a valuable tool." (Id., p. 7).
Indeed, courts have consistently upheld the use of LPR and similar technologies by law enforcement agencies. See, e.g., United States v. Miranda-Sotolongo, 827 F.3d 663, 668 (7th Cir. 2016) ("Because the police conducted a check of a database containing only non-private information and did so using only registration information that could be seen by any member of the public, the police did not conduct a Fourth Amendment search."); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (stating that "when police officers see a license plate in plain view, and then use that plate to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search"); United States v. Ellison, 462 F.3d 557, 563 (6th Cir. 2006) ("Thus, so long as the officer had a right to be in a position to observe the defendant's license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment"). In People v. Bushey, the New York Court of Appeals addressed a similar challenge to police-use of license plate information collected through LPR technology. See generally 29 N.Y.3d 158 (2017). There, the Court of Appeals explained that:
Id. at 163-64.
Here, Defendant Bell has explained how the Albany Crime Analysis Center ("ACAC"), a division of the Albany Police Department, tracks license plate information throughout the Albany area. (See Dkt. No. 168-31, ¶ 5). Relevantly, Defendant Bell states that:
(Id., ¶ 6). Defendant Bell further explains the LPR log forms cited by Plaintiff as follows:
(Id., ¶ 7).
In sum, the record shows that APD used fixed cameras throughout the city that indiscriminately recorded 24-hours a day, without any particular focus on specific individuals, a fact acknowledged by Plaintiff. (See Dkt. No. 165-28, pp. 135-36). And Plaintiff has presented no evidence that Defendant Bell used any technology other than LPR to track the location of Plaintiff's vehicles or his cell phone. Thus, for the reasons outlined by the Court of Appeals in Bushey, Defendant Bell's use of the LPR technology did not violate Plaintiff's Fourth Amendment rights because he had no reasonable expectation of privacy in his license plate information while traveling on public roads.
Accordingly, Defendant Bell's motion for summary judgment is granted.
Plaintiff claims that he was subjected to excessive force during encounters with APD officers on August 14, 2014 and October 13, 2014. (Dkt. No. 1, pp. 7-8, 22-23). Specifically, Plaintiff claims that an unknown officer (Defendant John Doe Badge #889) "used excessive force by tackling [ ] plaintiff to the ground and handcuffing plaintiff as he tried to enter the store on central ave on the night of August 14, 2014." (Id., p. 7). Plaintiff also claims that he was subjected to excessive force on October 13, 2014 when APD Officers Gavigan, Gorleski, Kuhn, and Meehan "roadblocked plaintiffs [sic] vehicle at gun point and strong armed plaintiff facedown in the middle of interstate I-90." (Id., p. 8). During his deposition, Plaintiff stated that he was "snatched out of the vehicle at gunpoint, . . . rustled, handcuff[ed], and arrested." (Dkt. No. 165-28, pp. 55-56). Plaintiff claims that the APD Officers had no reason to use force against him.
The Albany Defendants argue that Plaintiff's excessive force claim is subject to summary judgment because "[Plaintiff] fails to articulate any specific physical injuries," and "never sought or received medical treatment as a result of either incident." (Dkt. No. 167-1, pp. 10-11). In response, Plaintiff argues that officers used "extreme and excessive force" on both occasions, but he fails to identify any resulting injuries. (Dkt. No. 177, p. 3).
As discussed above, excessive force claims brought under Section 1983 are evaluated under the Fourth Amendment's "objective reasonableness" standard. See Terranova v. New York, 676 F.3d 305, 308 (2d Cir. 2012). "[A] plaintiff must present sufficient evidence to establish that the alleged use of force is `objectively sufficiently serious or harmful enough' to be actionable." Washpon v. Parr, 561 F.Supp.2d 394, 406 (S.D.N.Y. 2008) (quoting United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)). "[T]he Second Circuit and district courts in the Circuit recognize the concept of de minimis injury and, when the injury resulting from alleged excessive force falls into that category, the excessive force claim is dismissed." Jackson v. City of New York, 939 F.Supp.2d 219, 231 (E.D.N.Y. 2013); see also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Furthermore, a "`[d]e minimis injury can serve as conclusive evidence that de minimis force was used.'" Washpon, 561 F. Supp. 2d at 407 (quoting Carr v. Deeds, 453 F.3d 593, 606 (4th Cir. 2006)). However, "the absence of any significant injury to [Plaintiff] does not end the [excessive force] inquiry, for our standards of decency are violated even in the absence of such injury if the defendant's use of force was malicious or sadistic." Wright v. Goord, 554 F.3d 255, 270 (2d Cir. 2009).
Here, Plaintiff does not allege any specific injuries resulting from the claimed excessive force by APD officers on August 14 or October 13 in 2014. (See generally Dkt. No. 1; Dkt. No. 171). Plaintiff merely asserts that, on August 14th, he was "surrounded by all the officers who basically just took me down," and that "[t]hey came over with guns drawn, threw me down to the floor, rushing me down, and handcuffing me." (Dkt. No. 165-28, pp. 29-30). After being pushed to the ground, Plaintiff states that the APD officers "searched around me, took my phone and stuff out of my pocket, searched my pocket and my, you know, genital area around me at first. And then after that they went and told me to sat [sic] down on the curb, like helped me sit down because I was handcuffed." (Id., p. 32). As for October 13th, Plaintiff recalls that he "got tooken [sic] out of the car, snatched to the ground, handcuffed, and — rustled me out of the car and took me down to the precinct." (See id, pp. 55-56).
For both arrests, it is undisputed that APD officers had probable cause to believe that drug crimes had been committed and did not know whether Plaintiff and his associates were armed. (See Dkt. No. 167-2, pp. 4-9, 93-94). Crediting Plaintiff's allegations, the officers made these arrests by taking Plaintiff down to the ground and placing him in handcuffs. There is no evidence whatsoever that Plaintiff suffered any injury resulting from their actions, much less a significant one. Nor could malicious or sadistic intent be inferred based on their actions. On these facts, no jury could find that the force used against Plaintiff was unreasonable. Therefore, Plaintiff's excessive force against the APD Defendants must be dismissed. See Bermudez v. Waugh, No. 11-CV-947, 2013 WL 654401, at *5, 2013 U.S. Dist. LEXIS 23422, at *13-16 (N.D.N.Y. Feb. 21, 2013) (finding that tackling of inmate that caused minor bruising constituted de minimis force) (collecting cases); Bradley v. Village of Greenwood Lake, 376 F.Supp.2d 528, 535 (S.D.N.Y. 2005) (dismissing excessive force claim against arresting officer who kicked the plaintiff in the stomach causing temporary nausea and an abdominal scratch); Esmont v. City of New York, 371 F.Supp.2d 202, 213-15 (E.D.N.Y. 2005) (dismissing excessive force claim where arresting officer caused the plaintiff to bump her head as she was placed in patrol car, resulting in a headache; left her in hot patrol car for ten minutes, resulting in profuse sweating; and applied handcuffs too tightly, resulting in bruising, swelling and unsubstantiated claims of nerve damage).
Plaintiff next claims that Defendant Gavigan "falsified the arrest report/accusatory instrument on October 13, 2014 by alleging the red jacket found in the trunk belonged to this plaintiff as opposed to the driver who owned the vehicle." (Dkt. No. 1, p. 9). As a result, Plaintiff claims that his due process rights were violated because the "perjured arrest report/accusatory instrument" did not meet the "requirements of CPL 100.40 and CPL 100.15" since Gavigan "failed to provide any facts to support his conclusory statements[.]" (Id.).
In response, the Albany Defendants argue that Plaintiff's drug conviction related to the October 13th incident precludes him from asserting that Detective Gavigan falsified the related arrest report. (Dkt. No. 167-1, pp. 7-8). This argument relies on the Supreme Court's decision in Heck v. Humphrey, which held that:
512 U.S. 477, 486-87 (1994).
Here, Plaintiff offers no evidence that his conviction for Criminal Possession of a Controlled Substance in the Third Degree (see Dkt. No. 167-2, p. 7) has been reversed or invalidated. Furthermore, the undisputed facts demonstrate that Plaintiff's conviction stems entirely from the evidence obtained by APD officers on October 13th, which included 198 glassine envelopes of heroin recovered from Plaintiff's left coat pocket. (See id., p. 6). Thus, the success of Plaintiff's claim challenging the arrest report would necessarily imply the invalidity of his conviction.
For these reasons, the Court finds that Plaintiff's claim challenging the validity of the October 13th arrest report is barred by Heck and must be dismissed. See Warren v. Fischl, 674 F. App'x 71, 73 (2d Cir. 2017), cert. denied, 138 S.Ct. 123 (2017) (finding that the appellant's claims alleging that defendants "conspired to fabricate evidence and testimony against him and introduced such fabricated evidence and perjury at trial," if proved, "would demonstrate the invalidity of his conviction," and were therefore barred by Heck); Monroe v. Gould, 372 F.Supp.3d 197, 202-03 (S.D.N.Y. 2019) (granting summary judgment on a plaintiff's Section 1983 claim challenging the validity of the police search of a vehicle where the plaintiff's success would have implied the invalidity of the plaintiff's prior conviction).
Plaintiff also claims that APD officers subjected him to a number of unlawful strip and visual body cavity searches. (Dkt. No. 1, pp. 23-24). Specifically, Plaintiff alleges that while he was handcuffed on August 14, 2014, "[Defendant John Doe Badge #889], Detective Scott Gavigan and members of his unit arrived on scene and performed there [sic] own search of plaintiff private area [sic]." (Id., p. 8). According to Plaintiff, several APD officers, including Defendant Gavigan, took him to a parking lot and searched his pockets, waistband, shoes, socks, and then removed his belt. (Dkt. No. 165-28, pp. 33-35). Plaintiff states that "my genitals and all that was lift up, [officers] searched inside my pants . . . up under my arms, my shoes and socks was tooken [sic] off and then the back was also searched." (Id., pp. 35-36). When asked specifically whether the officers touched his genitals, Plaintiff testified: "Yes. Yes. Yes. Outside and at the precinct also, when I got down to the station house." (Id., p. 36).
Plaintiff also alleges that APD officers conducted a similar unlawful search when he was arrested on October 13, 2014, wherein Defendant Officers Gavigan and Kuhn performed a public search of Plaintiff's "private areas." (Dkt. No. 1, pp. 8-9, 22-23). And Plaintiff claims that APD Officers Gorleski, Kuhn and Meehan performed another unlawful visual body cavity search when Plaintiff arrived at the Albany police station. (See id., pp. 8-9, 22). Plaintiff claims that, on both occasions, the APD officers lacked probable cause to "forcibly search" his underwear in public. (Id., pp. 8-9). Consistent with these allegations, Plaintiff testified that the police strip-searched him in public and again at the police station. (Dkt. No. 165-28, pp. 57, 66). According to Plaintiff, APD officers, including Defendant Gavigan, physically touched his genitals during both searches. (Id., pp. 66-67).
The Albany Defendants admit that a visual body cavity search was conducted in a private room at the police station on October 13th, but they insist that no strip-searches were ever conducted in public.
The Fourth Amendment protects individuals from unreasonable searches by the government. See U.S. Const. amend. IV. A search of a person is presumptively unreasonable if conducted without a warrant, but warrantless searches may be justified if they fall under an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967). For example, strip-searches at detention facilities are generally valid under the Fourth Amendment, as discussed above. Under the circumstances here, Plaintiff's allegations about searches at the police station also fall in this category. Notably, the record shows that Plaintiff was arrested with a large amount of narcotics in glassine envelopes and has a criminal history involving narcotics. (See Dkt. No. 167-2, p. 6). Therefore, the police also had reasonable suspicion that Plaintiff could be carrying and concealing drugs on his person, which justified the search. Further, Plaintiff admits that the search at the station was performed in a private room, limiting the intrusion on his privacy. (See Dkt. No. 165-28, p. 64).
Accordingly, Plaintiff's allegations about searches at the police station do not permit a rational finding that his Fourth Amendment rights were violated. See Elk v. Townson, 839 F.Supp. 1047, 1052 (S.D.N.Y. 1993) (holding that the defendant's presence in a vehicle in which drugs were found gave the sheriff's office "reasonable grounds" to conduct a strip-search at the precinct); Easton v. City of New York, No. 05-CV-1873, 2009 WL 1767725, at *3-4, 2009 U.S. Dist. LEXIS 53519, at *8-12 (E.D.N.Y. June 23, 2009) (holding that reasonable suspicion existed for visual body cavity search where the plaintiff was arrested while in possession of marijuana and cash, allowing the rational inference that he was engaged in the sale and distribution of marijuana); see also United States v. Doutre, No. 08-CR-10215, 2009 WL 1211048, at *5, 2009 U.S. Dist. LEXIS 37758, at *12-13 (D. Mass. May 5, 2009) (holding that police had reasonable suspicion to conduct a strip-search of the defendant at the station where the defendant was arrested for a drug trafficking crime and police had received information from an informant that defendant possessed cocaine earlier that evening).
However, as to the alleged public strip-searches, the parties' contrasting accounts preclude summary judgment because there is an issue of fact as to whether Plaintiff was subjected to a public strip-search/visual body cavity inspection. A public search as alleged would rise to the level of a Fourth Amendment violation. In sum, the Albany Defendants' motion for summary judgment on Plaintiff's Fourth Amendment claims is granted as to the strip and/or visual body cavity searches conducted upon intake at the Albany police station, but denied as to Plaintiff's claims that APD officers touched his genitals during public strip-searches on August 14th and October 13th of 2014.
Next, Plaintiff alleges that Defendant Gavigan unlawfully "seized" $5,832.00 from him on an unspecified date. (Dkt. No. 1, p. 12). Plaintiff asserts that he has "yet to receive a voucher or notification of forfeiture proceedings," and that "[n]othing was ever mentioned in court and I hereby request [the] return of my money confiscated. Plaintiff asserts a claim of conversion [ ]." (Id.).
The Albany Defendants deny that that Detective Gavigan ever seized any money from Plaintiff, and argue that "even assuming this allegation is true, the availability of an Article 78 procedure is sufficient to satisfy Plaintiff's right to due process such that Plaintiff fails to state a cognizable [Section 1983] due process claim." (Dkt. No. 167-1, p. 14). In response, Plaintiff argues that the "court has jurisdiction over plaintiff [sic] property claim irrespective of plaintiff not filings [sic] and article 78 and waisting [sic] time." (Dkt. No. 177, p. 3).
In general, "there is no constitutional violation (and no available Section 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty." Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881-82 (2d Cir. 1996) (citations omitted). As noted by the Albany Defendants, the Second Circuit has held that "an Article 78 proceeding constitutes an adequate postdeprivation procedure under the Due Process Clause. . . ." Id. (citing Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988)). Moreover, this Court has held that Article 78 proceedings provide an adequate remedy for those who seek to challenge any action or inaction by an administrative agency or officers of state or local government. See Hourihan v. Lafferty, 58 F.Supp.2d 10, 14-15 (N.D.N.Y. 1999) (citing N.Y. C.P.L.R. § 7801).
Here, Plaintiff has offered no evidence that he ever sought the return of the money that was allegedly seized by Detective Gavigan, either directly from APD or through an Article 78 proceeding. Plaintiff's remedy for this claim was to seek relief under Article 78 rather than file suit in federal court. Accordingly, Plaintiff's claim to recover the value of the seized property is dismissed as a matter of law.
Lastly, Plaintiff asserts a municipal liability claim against the City of Albany under several theories, including: (1) failure to train, supervise, or discipline its employees; (2) creation and use of "a blanket policy that allowed . . . officers to commit perjury within arrest reports;" (3) "fail[ure] to implement a policy that screen [sic] all arrest reports/accusatory instruments for facial and jurisdictional defects prior to infringing upon a plaintiff [sic] due process liberty rights;" (4) creation of "a blanket policy that allowed all officers to arrest a plaintiff in the absence of probable cause;" (5) "deliberate indifference to Plaintiff's false arrest by enforcing a blanket policy created by the prosecutor and the police chief to allow the Albany police to conduct stop-frisks, unlawful cavity searches, and file false reports without conducting a thorough investigation;" and (6) "the admission visual body cavity searches . . . conducted pursuant to a long-established plan, policy, or procedure of the. . . albany police department." (Dkt. No. 1, pp. 9-10, 15-17, 20-21).
In support of summary judgment, the Albany Defendants argue that "the only proof Plaintiff has offered in an attempt to substantiate these conclusory, boilerplate allegations are his own isolated allegations of misconduct which form the basis of this litigation." (Dkt. No. 167-1, p. 12). In response, Plaintiff argues that "[t]he defendants were put on notice for years about the same identical issues raised herein and failed to discipline or institute a policy to detect perjury, filings of perjured false police report, unlawful cavity searches etc. wherefore these issues are not isolated and clearly establishes a monell claim." (Dkt. No. 177, p. 3).
Under Monell, a city may only be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal "policy or custom." 436 U.S. at 694-95; see also Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-36 (1989)). A municipal policy or custom may be established by any of the following: (1) a formal policy, officially promulgated by the municipality, id. at 690; (2) an action taken by the official responsible for establishing policy with respect to a particular issue, Pembaur, 475 U.S. at 483-84; (3) unlawful practices by subordinate officials so permanent and widespread as to practically have the force of law, City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1985) (plurality opinion); or (4) a failure to train or supervise that amounts to "deliberate indifference" to the rights of those with whom the municipality's employees interact. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Here, Plaintiff has not demonstrated any underlying constitutional violation to support his Monell claim, with the possible exception of the alleged public searches. Moreover, he has not produced any evidence of a municipal policy or custom by the City of Albany that caused the alleged constitutional violations. Plaintiff simply asserts, without offering supporting evidence, that his experiences with APD officers were part of a larger pattern of systemic misconduct. (See Dkt. No. 1, pp. 9-10, 15-17, 20-21). At most, Plaintiff has only alleged a few isolated instances of misconduct.
The Schenectady County Defendants and Defendant Bell also move to dismiss all cross-claims against them. (See Dkt. No. 165-43, pp. 32-33; Dkt. No. 168-32, p. 9). Although "[n]either the Supreme Court nor the Second Circuit has ruled on the question of whether there is a right to contribution between joint tortfeasors under 42 U.S.C. § 1983, New York district courts have consistently held that federal law does not provide a basis for contribution under Section 1983." See Thomas v. City of Troy, 293 F.Supp.3d 282, 301-02 (N.D.N.Y. 2018) ("even if this action went to trial and City Defendants were found liable, they would be liable for their own actions and not for the actions of County Defendants"); see also De Ratafia v. County of Columbia, No. 13-CV-0174, 2013 WL 5423871, at *18, 2013 U.S. Dist. LEXIS 138169, at *52-54 (N.D.N.Y. Sept. 26, 2013) (holding that "federal law does not provide a basis for contribution for liability under Section 1983"); Castro v. County of Nassau, 739 F.Supp.2d 153, 184 (E.D.N.Y. 2010) ("To the extent the County seeks indemnification and contribution on plaintiff's § 1983 claims, they cannot do so as a matter of law. No right to contribution exists under § 1983. Nor is there a federal right of indemnification under the statute."). The Court sees no reason to diverge from this well-established precedent here. Accordingly, Defendants' cross-claims for contribution and indemnity are dismissed.
For the foregoing reasons, it is
Jose Bermudez, Comstock, NY, pro se.
Office of the New York, State Attorney General, Douglas J. Goglia, AAG, of Counsel, Albany, NY, for Defendant.
Hon. MAE A. D'AGOSTINO, District Judge.
On July 7, 2012, Defendant filed a motion for summary judgment. See Dkt. No. 24. Despite receiving notice of Defendant's motion and the need to properly oppose it from both Defendant's counsel and the Court, Plaintiff failed to respond to the motion. See Dkt. Nos. 24, 25. On January 29, 2013, Magistrate Judge Peebles issued a Report and Recommendation in which he recommended that the Court grant Defendant's motion. See Dkt. No. 26. On February 13, 2013, the Court received Plaintiff's objections to Magistrate Judge Peebles' Report and Recommendation. See Dkt. No. 27.
Currently before the Court is Magistrate Judge Peebles' Report and Recommendation.
On the morning of May 4, 2011, Plaintiff was informed that he was being relocated from his cell in Eastern Correctional Facility's ("Eastern C.F.") west wing to another housing unit within the facility. See Dkt. No. 24-2 at ¶ 3. In response, Plaintiff prepared for the move by packing his personal property and proceeding to the ground floor. See id. at ¶¶ 4-5.
When Defendant arrived at the ground floor, a dispute arose concerning the extent of Plaintiff's personal property. See id. at ¶ 6. Specifically, Defendant accused Plaintiff of having excessive property and ordered him several times to take his property bags to the basement for inspection and inventorying. See id. at ¶¶ 7-13. Plaintiff refused each of those orders, claiming that, because he was medically exempt from lifting anything in excess of twenty pounds, he could not comply. See id. at ¶ 14. Instead, Plaintiff sat down in a chair, explicitly stated that he was refusing to comply with the orders, and demanded that the sergeant on duty be contacted. See id. at ¶ 15.
After another corrections officer approached the area and indicated that he needed to use the cart on which Plaintiff's personal property was situated, Defendant again ordered Plaintiff to remove a bag from the property cart. See id. at ¶¶ 20-21. After Plaintiff complied, Defendant directed him to carry the rest of his bags. See id. at ¶ 23. When Plaintiff again refused to comply with this order, Defendant "charged [him] like a football player ... leaned down a little bit, ran towards [him,] ... pushed his weight against [his] body" and either hit or punched Plaintiff in the chest. See Dkt. No. 24-4 at 19; Dkt. No. 24-2 at ¶ 26.
Following the incident, Plaintiff's property was inspected revealing an altered hot pot, which is considered contraband under prison rules. See Dkt. No. 24-2 at ¶¶ 29-30. Plaintiff was subsequently issued a misbehavior report for possessing contraband, creating a disturbance, refusing to obey a direct order, and engaging in verbal harassment. See id. at ¶ 30; Dkt. No. 24-7 at 2-3. On May 16, 2011, a Tier III hearing was held and Plaintiff was found guilty of all charges. See id.
Plaintiff commenced this action in the Southern District of New York through the filing of a "Petition Pursuant to Civil Service Law," dated May 9, 2011. See Dkt. No. 1. Upon transfer to this district, the Court conducted an initial review of the petition and concluded that the petition, liberally construed, sets forth an Eighth Amendment excessive force claim against Defendant. See Dkt. No. 7 at 6-7.
On July 2, 2012, Defendant moved for summary judgment. See Dkt. No. 24. In his motion, Defendant argues that the record evidence, including Plaintiff's own deposition testimony, demonstrates that the amount of force used against Plaintiff was de minimis and, therefore, does not support an Eighth Amendment violation. See Dkt. No. 24-1 at 9-13. Despite receiving notice of Defendant's motion and the need to properly oppose it from both Defendant's counsel and the Court, Plaintiff failed to respond. See Dkt. Nos. 24, 25.
On January 29, 2013, Magistrate Judge Peebles issued a Report and Recommendation in which he recommended that the Court grant Defendant's motion in its entirety. See Dkt. No. 26. Specifically, Magistrate Judge Peebles found that, "[a]s it relates to the objective component, by his own account, plaintiff's injury only amounted to a small `red mark' or `red bruise' on his chest." See id. at 14 (citing Dkt. No. 24-4 at 35). Therefore, Magistrate Judge Peebles recommended that the Court find that such "a limited use of force cannot satisfy the objective requirement" of Plaintiff's excessive force claim. See id. (citation omitted). Moreover, Magistrate Judge Peebles found that Plaintiff cannot satisfy the objective prong either because, "[b]y plaintiff's own account, defendant Waugh used force only as a result of plaintiff's explicit refusal to obey multiple orders." See id . (citing Dkt. No. 24-4 at 17). Further, Magistrate Judge Peebles noted that "the force by defendant Waugh was applied over only a matter of seconds and included only a single push or shove, with plaintiff admitting that defendant Waugh, when allegedly `charging' plaintiff, was not running at top speed." See id. at 14-15 (quoting Dkt. No. 24-4 at 18-19, 34).
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994) (citations omitted). When analyzing a summary judgment motion, the court "`cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to `formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's `bald assertion,' completely unsupported by evidence" is not sufficient to overcome a motion for summary judgment. Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. The Eighth Amendment's prohibition against cruel and unusual punishment prohibits the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000).
To bring a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999). The objective element is "responsive to contemporary standards of decency" and requires a showing that "the injury actually inflicted is sufficiently serious to warrant Eighth Amendment protection." Hudson, 503 U.S. at 9 (internal citations omitted); Blyden, 186 F.3d at 262. However, "the malicious use of force to cause harm constitute [s][an] Eighth Amendment violation per se" regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9); see also Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) ("The `core judicial inquiry' ... was not whether a certain quantum of injury was sustained, but rather `whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm'" (quotation omitted)). "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).
Having carefully reviewed the entire record in this matter, the Court finds that Magistrate Judge Peebles correctly determined that the Court should grant Defendant's motion for summary judgment. Plaintiff does not dispute Defendant's account regarding the amount of force used during the incident in question and the resulting injury. During his deposition, Plaintiff recounted the incident as follows:
See Dkt. No. 24-4 at 18-19. This conduct resulted in injuries that were described by Plaintiff as only a "little red mark" or "red bruise," which was only "a couple centimeters across." See id. at 34-35. This de minimis use of force, which caused only slight bruising, is clearly insufficient to satisfy the objective prong of an excessive force claim. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (holding that inmate's claims that he was "bumped, grabbed, elbowed, and pushed" by prison officials insufficient); James v. Phillips, No. 05 Civ. 1539, 2008 WL 1700125, *4-*5 (S.D.N.Y. Apr. 9, 2008) (finding de minimis use of force when prison guard shoved inmate into door which resulted in swelling of the inmate's chin); Virella v. Pozzi, No. 05 Civ. 10460, 2006 WL 2707394, *3 (S.D.N.Y. Sept.20, 2006) (finding only a de minimis force used where officer swung keys at the plaintiff, making contact with his head and causing a bump); Espinal v. Goord, No. 00 Civ. 2242, 2001 WL 476070, *4, *13 (S.D.N.Y. May 7, 2001) (finding that the use of force was de minimis where guard struck the plaintiff in face two or three times, causing his face to turn red, but resulting in no other injuries); Yearwood v. LoPiccolo, No. 95 Civ. 2544, 1998 WL 474073, *1, *7 (S.D.N.Y. Aug. 10, 1998) (finding a de minimis use of force where guard choked the plaintiff, hit his head with a pair of keys, and punched him in the lip); Show v. Patterson, 955 F.Supp. 182, 192-93 (S.D.N.Y.1997) (finding only a de minimis force used where officer pushed the inmate against wall); Gonzalez v. Coughlin, No. 92 Civ. 7263, 1996 WL 496994, *4-*5 (S.D.N.Y. Aug.21, 1996) (finding no excessive use of force where the plaintiff alleged corrections officers tripped him to the ground and hit him in the knee); DeArmas v. Jaycox, No. 92 Civ. 6139, 1993 WL 37501, *4 (S.D.N.Y. Feb.8, 1993) (finding a de minimis use of force where the inmate suffered a bruise and injured right knee after being punched and kicked once).
In his objections to Magistrate Judge Peebles Report and Recommendation, Plaintiff asks this Court to forgive his failure to submit a response to Defendant's motion. See Dkt. No. 27 at ¶ 2. Plaintiff claims that he "had no idea that this matter was in discovery stage" or that discovery had now closed. See id. at ¶ 3. Moreover, Plaintiff now asserts that he was only taken to the SHU after he "complained of the assault and how it was trying to be covered-up." See id. at ¶ 6. Plaintiff claims that the Tier III hearing, at which he was found guilty of various charges, was procedurally defective and that no evidence was presented to support the finding of guilt on several of the charges. See id. at ¶¶ 9-13. Moreover, Plaintiff claims that his placement in the SHU constituted cruel and unusual punishment because it was "done under a false pretense." See id. at ¶ 14.
First, to the extent that Plaintiff is now attempting to allege a First Amendment retaliation claim, a Fourteenth Amendment due process claim, and an Eighth Amendment claim regarding his SHU confinement, his claims must be rejected. It is well settled that a litigant may not raise new claims not contained in the complaint in opposition to a motion for summary judgment or in objections filed in response to a Magistrate Judge's report and recommendation. See Avillan v. Donahoe, 483 Fed. Appx. 637, 639 (2d Cir.2012) (holding that the district court did not err in disregarding allegations the plaintiff raised for the first time in response to the defendant's motion for summary judgment) (citation omitted); Shah v. Helen Hayes Hosp., 252 Fed. Appx. 364, 366 (2d Cir.2007) (holding that "[a] party may not use his or her opposition to a dispositive motion as a means to amend the complaint") (citation omitted); Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 219-20 (N.D.N.Y.2008) (holding that a pro se plaintiff's civil rights complaint should not be effectively amended by his new allegations presented in his response to the defendants' motion for summary judgment). Although the Court is aware of the special solicitude afforded to pro se litigants, construing Plaintiff's objections to the Report and Recommendation as amending his complaint would be inappropriate. In its November 1, 2011 Memorandum-Decision and Order, the Court granted Plaintiff an opportunity to amend his complaint, but he declined to do so. See Dkt. No. 7. Moreover, that decision made clear to Plaintiff that the Court construed his complaint as alleging only the two causes of action identified. See id. If Plaintiff was attempting to allege claims in his complaint in addition to those identified by the Court, he should have moved to amend at that point or in the eight months that followed prior to Defendant filing its motion for summary judgment.
After carefully considering Magistrate Judge Peebles' Report and Recommendation, Plaintiff's objections thereto, and the applicable law, and for the reasons stated herein, the Court hereby
Not Reported in F.Supp.2d, 2013 WL 654401
Office of Glenn Backer, Glenn Backer, Esq., of Counsel, New York, NY, for Plaintiffs.
Goldberg Segalla, L.L.P., Jonathan M. Bernstein, Esq., Matthew S. Lerner, Esq., of Counsel, Albany, NY, for County Defendants.
Gallet Dreyer & Berkey, LLP, David S. Douglas, Esq., Adam M Felsentein, Esq., of Counsel, New York, NY, for Defendant Henry Wrenn-Meleck.
NORMAN A. MORDUE, Senior District Judge.
The following facts are taken from plaintiffs' complaint. Plaintiffs and defendant Meleck are all New York County residents who maintain separate residences in Chatham, New York. Chatham, New York is located in Columbia County, New York. Plaintiff de Ratafia is a 61 year old retired real estate investor with financial interests in Columbia County. de Ratafia generally resides in New York, New York. Plaintiff Ackroyd is de Ratafia's fiancé. She is a New York State licensed nurse practitioner and a board certified psychiatric therapist. She is presently the director of psychiatric emergency services at Long Island Jewish/Lenox Hill Hospital in Manhattan. de Ratafia and Ackroyd occupy de Ratafia's property in Columbia County on various occasions year round. According to plaintiffs, defendant Meleck is a businessman with full time professional commitments in New York County, New York. Defendant Meleck occupies his property in Columbia County on weekends and other occasions.
In or about mid-September 2011, Meleck "entered upon the de Ratafia property without warning or invitation and engaged de Ratafia and Ackroyd in conversation." During the course of this meeting, de Ratafia and Ackroyd requested that in the future, Meleck not enter upon their property unannounced as their view from their home to the street and the long drive was "obscured by thick forest and de Ratafia was concerned over the prospect of unseen thieves and wild animals approaching [his] home." Thereafter, Meleck sought out de Ratafia and Ackroyd's conversation and company on the de Ratafia property.
On Sunday, October 16, 2011, in the late afternoon, de Ratafia invited Meleck to visit the de Ratafia House for food and conversation. After Meleck accepted the foregoing invitation and stated that he could not drive because he had been drinking alcohol, de Ratafia picked up Meleck at Meleck's house and took him to the de Ratafia house. Meleck spent approximately four hours with de Ratafia and Ackroyd at their home. During the course of the late afternoon and early evening, de Ratafia and Ackroyd offered Meleck food and Meleck's choice of non-alcoholic and alcoholic beverages. Meleck continually helped himself to both food and several glasses of wine and requested several other helpings of liquors.
During the visit, de Ratafia also showed Meleck a large framed photo collage depicting various stages of de Ratafia's life, his family's experience and scattering after the Holocaust, including photographs of parents, children and relatives murdered by the Nazis and survivors along with their Polish saviors. During the visit, Meleck actively engaged de Ratafia and Ackroyd in discussion of the Holocaust and volunteered that his family was partially of Jewish heritage. During the visit, de Ratafia and Meleck also discussed their mutual enjoyment of antique cars and interest in a local film festival. Meleck mentioned his interest in being introduced to female companions de Ratafia and Ackroyd might know. During the visit, Meleck asked for and was given a tour of the de Ratafia House.
de Ratafia drove Meleck to his home at approximately 9:00 p.m. Upon arrival at Meleck's home, the lights were out and the area around Meleck's house was very dark. Thus, at Meleck's request, de Ratafia escorted Meleck to the door and assisted putting on the lights before departing. Meleck stated that he sometimes was uncomfortable at night alone in his house because it was isolated from other neighbors' properties and he feared intruders. After de Ratafia assisted Meleck in illuminating the house, Meleck asked de Ratafia in for a drink, but de Ratafia declined as Ackroyd was home alone, it was late and he wanted to return to his home and retire for the evening. Before de Ratafia returned to his car, Meleck thanked de Ratafia for his hospitality, said that he hoped to have de Ratafia and Ackroyd over to introduce them to some of Meleck's neighbors in Columbia County, gave de Ratafia his New York City residential and business contact information, and said he wanted to socialize with de Ratafia and Ackroyd in Manhattan, travel with de Ratafia to an upcoming antique car show and film festival, and meet eligible female companions through Ackroyd.
There was no response from the person(s) outside the de Ratafia house except that one or more of the persons began to bang on the door and turn the door handle. de Ratafia picked up an unloaded shotgun he kept in the de Ratafia House for protection from bears and yelled that the police had been summoned. de Ratafia kept the shotgun pointed away from the door at all times.
de Ratafia approached the front door with the shotgun pointing at the floor and again yelled that the person(s) outside the door should leave before the police arrived. One or more of the persons outside the front door shouted that de Ratafia should drop the shotgun. de Ratafia immediately placed the shotgun on the floor. In the next few seconds, the door flung open and three persons, whom de Ratafia still could not see clearly in the dark, immediately ran into the house. Although de Ratafia had already placed the shotgun on the floor before the door was forced open, one or more of the intruders shouted at de Ratafia to drop the gun and all three Intruders pointed guns at de Ratafia.
de Ratafia screamed that the shotgun was not loaded and warned again that the police had been summoned. As one of the intruders pointed a gun directly at de Ratafia and ordered him to lie on the floor, de Ratafia immediately attempted to comply, but two of the intruders grabbed de Ratafia, threw him to the floor, which is uncarpeted stone, and one of the intruders held a gun to de Ratafia while another placed his knee forcefully in de Ratafia's back as he lay on the floor. de Ratafia screamed that he was in pain and respiratory distress and asked that he be allowed to stand up but the intruders did not respond.
At that moment, Ackroyd approached the second floor landing in a state of undress and yelled for the intruders not to harm de Ratafia. At least one of the intruders pointed his weapon at Ackroyd and ordered her not to move. As de Ratafia's dog ran down the stairs barking, one of the intruders pointed a weapon at the dog and ordered Ackroyd to restrain the animal or he would shoot it. The intruders would not allow de Ratafia to rise and told him to "Shut the f____up" multiple times. As one of the intruders kept his knee in de Ratafia's back despite de Ratafia's shouts of pain and respiratory distress, another forcefully yanked and twisted de Ratafia's arms behind his back and applied tight metal handcuffs, again provoking de Ratafia's yells of distress and request that he be allowed to rise.
When de Ratafia asked the reason for the home invasion, one of the Deputy Sheriffs again told de Ratafia to "Shut the fup" and asked if he had any other weapons on his person. de Ratafia was wearing only a loose sleeveless t-shirt and boxer shorts that could not have concealed any weapon and de Ratafia said the only other weapon was an ornamental antique unloaded rifle mounted on the mantle. One of the Deputy Sheriffs then roughly grabbed de Ratafia and threw him up against the wall, repeated his order that de Ratafia not speak, and ordered that he remain still. de Ratafia advised that he was having trouble breathing, had a heart condition, and was in pain both from the rough treatment and from the wrenching of his arms behind his back to apply the tight restraints, which he said were cramping his neck and shoulder. When de Ratafia asked the Deputy Sheriffs to loosen the restraints, the one nearest De Ratafia, who still had his weapon in hand, told de Ratafia to "keep your fing mouth shut."
Without asking permission, two of the three Deputy Sheriffs began to search the de Ratafia house without explaining the object of their search or making any other comment. de Ratafia said that the Deputy Sheriffs had no right or invitation to invade or search his house and• told them to leave, but the Deputy Sheriffs did not respond and continued searching the house.
Ackroyd asked that the Deputy Sheriffs loosen the hand restraints, allow de Ratafia to sit down, determine whether he needed medical assistance, and explain the purpose of their invasion. One of the Deputy Sheriffs responded curtly that they had received a complaint from a neighbor. None of the Deputy Sheriffs offered de Ratafia medical assistance or requested medical assistance for de Ratafia. After searching the house, one of the Deputy Sheriffs twice said in substance to de Ratafia and Ackroyd, "Do you know we almost killed you?"
Ackroyd asked that she be allowed to examine de Ratafia, repeating that he had a heart condition, and again asked why the Deputy Sheriffs burst into their home and assaulted them. The Deputy Sheriffs allowed Ackroyd to examine de Ratafia but otherwise summoned no medical assistance or expressed any concern over de Ratafia's condition or injuries. Ultimately one of the Deputy Sheriffs removed the restraints from de Ratafia's hands and allowed him to sit down at the dining room table with Ackroyd sitting next to him. de Ratafia again asked the Deputies to leave, but they would not.
Ackroyd confirmed de Ratafia's summary asking the Deputy Sheriffs to leave so she could determine whether de Ratafia should be taken to the hospital. The Deputy Sheriffs then left the de Ratafia House without further comment, except that they forbade de Ratafia's further contact with Meleck.
After exiting the house, the Deputy Sheriffs remained on the de Ratafia Property for another 10 to 15 minutes and then left the de Ratafia property in two department vehicles. Plaintiffs allege that defendant Deputies Proper, Hyson and Rose participated in the "home invasion, assault and other illegal activities" at their home. de Ratafia and Ackroyd were not taken into custody. No charges ever were lodged against de Ratafia or Ackroyd. No explanation was ever provided to de Ratafia or Ackroyd of the reason for the invasion and assault prior to de Ratafia pressing for an explanation in subsequent days and weeks.
On December 16, 2011, de Ratafia traveled to the Columbia County Sheriff's Department administrative offices in Hudson, New York to request an explanation of the invasion and assault, but the Department spurned de Ratafia's inquiry and advised that it lacks supervisory control over or knowledge of the daily activities of its Deputies.
According to the Sheriff's report of an incident that occurred on October 16, 2011, Meleck placed a 911 call requesting dispatch of Sheriffs deputies or the police.
Thereafter, one or more of the defendant Deputy Sheriffs advised Meleck that they intended to travel to de Ratafia's house on the basis of his report. Meleck told the Deputies that de Ratafia feared unannounced visitors based upon his prior experience of making an unannounced visit to de Ratafia's home. At the time that Meleck made his October 16, 2011, report, Meleck was aware that de Ratafia kept a "shotgun which was on a chair near the front door," although Meleck made no allegation that de Ratafia had threatened him with a weapon.
On the basis of Meleck's report, defendants Proper and Hyson took Meleck to the house of another neighbor, Barry Biederman, for the evening. The Sheriff's report stated that without any forewarning to de Ratafia or Ackroyd, defendants Proper, Hyson and Rose, located and entered upon the de Ratafia property and proceeded into the house.
For more than a week after making the October 16, 2011 report, Meleck made no effort to contact the Sheriff's Department or any of the Deputy Sheriffs. On October 18, 2011, Deputy Hyson attempted to contact Meleck to follow up on his report, but Meleck did not respond for almost a week. On October 24, 2011, Meleck again told Deputy Hyson and possibly other members of the Sheriff's Department, that he still purportedly was afraid of de Ratafia but could not articulate any basis for his fear and still did not want to sign a complaint against de Ratafia. On October 24, 2011, when pressed by one or more of the individual Deputy Sheriffs to substantiate his purported fear, the only statement that Meleck could offer as a basis of his fear was that de Ratafia had offered him non-Kosher sausage during the October 16, 2011, visit. On October 24, 2011, when pressed further, Meleck stated, for the first time, that during the ride de Ratafia gave Meleck to his house at the end of the October 16, 2011, evening, he believed de Ratafia had said he could hurt or blackmail Meleck, "but he [couldn't] remember the exact words." Meleck also told the Deputies during this follow-up interview that de Ratafia had drugged him on October 16, 2011. When asked the basis for this accusation, Meleck stated that he had a "burning sensation" in his head upon arriving home "but didn't know if something was put in his drink or not."
Plaintiffs commenced the present action in July 2012, alleging that the elected Sheriff, defendant Harrison, the defendant Deputy Sheriffs and Meleck were involved in a joint venture and conspiracy to violate their constitutional rights under the Fourth, Fifth, Sixth and Fourteenth Amendments. Plaintiffs assert the following causes of action in the complaint against all defendants: (1) a section 1983 Fourth Amendment violation claim (Count I); (2) a section 1983 Fifth and Fourteenth Amendment violation claim (Count II); (3) a section 1983 Fifth and Sixth Amendment violation claim (Count III); (4) a New York State Constitution violation claim (Count IV); (5) a common law assault and battery claim (Count V); (6) a common law assault claim (Count VI); (7) a common law false arrest claim (Count VII); (8) an intentional infliction of emotional distress claim (Count VIII); (9) a negligent infliction of emotional distress claim (Count IX); (10) a failure to intervene claim under section 1983 and common law (Count X); (11) a section 1983 and common law supervisor liability claim (Count XI); and (12) a claim for injunctive relief (Count XVI). Plaintiffs also assert a respondeat superior claim against defendant County of Columbia only (Count XII). Plaintiffs also assert punitive damages against the defendant County. The remaining counts in the complaint relate to defendant Meleck only. Count XIII alleges defamation, Count XIV asserts intentional infliction of emotional distress; and finally, Count XV claims negligent infliction of emotional distress.
Defendant Meleck also moves to dismiss plaintiffs' claims against him on the ground that he is a private individual and thereby cannot be liable under 42 U.S.C. § 1983. Meleck also argues that plaintiffs' common-law claims against him must be dismissed since Meleck did not participate in the police raid at plaintiffs' home on October 16, 2011. Meleck urges the Court not to exercise supplemental jurisdiction over plaintiffs' state law claims because the federal causes of action are deficient. The County defendants oppose defendant Meleck's motion to dismiss in part. While the County defendants agree with Meleck's position that plaintiffs have failed to state any claim under 42 U.S.C. against him, they assert that they have the right to seek contribution from Meleck in connection with plaintiffs' state law claims.
The standard applicable to motions to dismiss are well-settled. On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept the allegations of the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995). In addition, the Court may not dismiss the complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nettis v. Levitt, 241 F.3d 186, 191 (2d Cir.2001) (quotation omitted). Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)).
1. Liability under 42 U.S.C. § 1983
The Court notes in the first instance that defendant Harrison is sued in both his official and personal capacities. Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-238 (1974). Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dep't. of Soc. Servs., 436 U.S. 658, 690, n. (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon v. Holt, 469 U.S. 464, 471-472 (1985). Thus, because plaintiffs have sued Columbia County in this case, their claims against Sheriff Harrison in his official capacity are redundant to the County's potential § 1983 liability and must be dismissed. See e.g. Beckwith v. Erie County Water Auth., 413 F.Supp.2d 214, 225 (W.D.N.Y.2006).
Some courts have interpreted the Iqbal decision as abrogating several of the categories of supervisory liability enumerated by the Second Circuit in Colon, 58 F.3d at 873.
Here, plaintiffs fail to make any allegations against defendant Harrison, the elected Sheriff of Columbia County, that suggest he had any actual or constructive knowledge of, or responsibility for the alleged deprivation of plaintiff's civil rights when the defendant Deputy Sheriffs made their alleged illegal entry into plaintiffs' home and violated their rights. Plaintiffs assert that defendant Harrison, the defendant Deputy Sheriffs and defendant Meleck were involved in a "joint venture and conspiracy" to violate their rights. "To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999) (citing Carson v. Lewis, 35 F.Supp.2d 250, 271 (E.D.N.Y.1999). Nowhere do plaintiffs identify the specific personal actions defendant Harrison — or for that matter, any of the other purported participants-took in furtherance of this alleged joint venture and conspiracy. In order to state a claim of conspiracy under § 1983 the complaint must contain more than mere conclusory allegations. See, e.g., Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.), cert. denied, 506 U.S. 819 (1992); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir.1988); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977) (per curiam); Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620, 622-23 (2d Cir.1972), cert. denied, 410 U.S. 944 (1973). A plaintiff should make an effort to provide some "details of time and place and the alleged effect of the conspiracy." 2A MOORE'S FEDERAL PRACTICE ¶ 8.17[6], at 8-109 to 8-110 (2d ed.1992). Thus, complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; "[d]iffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Ostrer, 567 F.2d at 553; Salahuddin, 861 F.2d at 43.
Plaintiffs also assert that defendant Harrison "knew or should have known that the Deputy Sheriffs eventually would be faced with the type of vague, indefinite report from an inebriate that Meleck gave" on October 16, 2011, and "promulgated no standards for evaluation or supervisory review of the Deputy Sheriffs' response to such unreliable reports." However, absent from the complaint are any facts establishing or suggesting the alleged basis for defendant Harrison's knowledge or awareness of the likelihood that his Deputies would respond in the manner they did herein to the complaint of a drunkard.
It is apparent from review of the complaint that the claims as presently stated against defendant Harrison could only be supported pursuant to respondeat superior or vicarious liability doctrines, which do not support liability under § 1983. Because plaintiffs fail to allege any facts that would allow the court to "draw the reasonable inference that [defendant Harrison] is liable for the misconduct alleged," Iqbal, 556 U.S. at 678, the federal claims in the complaint as to defendant Harrison must be dismissed for failure to state a claim. Specifically, the Court refers to Counts I, II, III, X, and XI to the extent that they assert claims under 42 U.S.C. § 1983 against defendant Harrison.
Insofar as plaintiffs' state law claims against defendant Harrison, there are no factual allegations which establish or suggest that defendant Harrison personally committed any acts which could be considered tortious under New York law. Indeed, in every instance, plaintiffs assert that the alleged illegal conduct of the defendant Deputy Sheriffs was committed "under the authority" of defendant Harrison's office. It is well-settled that a Sheriff cannot be held personally liable for the acts or omissions of his deputies while performing criminal justice functions, and that this principle precludes vicarious liability for the torts of a deputy. Barr v. Albany County, 50 N.Y.2d 247, 257 (1980) (citing Flaherty v. Milliken, 193 N.Y. 564, 569 (1908); Foyster v. Tutuska, 25 A.D.2d 940, 940-41 (4th Dep't 1966); Isereau v. Stone, 3 A.D.2d 243, 4th Dep't 1957) ("the deputies in this case were discharging criminal duties of the sheriff's office and as such were in the service of the public and the sheriff may not be held personally liable for their alleged acts of negligence, misfeasance or nonfeasance."). Thus, Count X, which asserts "failure to intervene" against defendant Harrison and, Count XI which alleges "supervisory liability" under New York common law must be dismissed. In the absence of factual allegations establishing that defendant Harrison was personally involved in the alleged state law torts of assault, battery, false arrest, intentional infliction of emotional distress and negligent infliction of emotional distress, these claims (Counts V, VI, VII, VIII and IX) also fail to state a cause of action under New York law.
The Court notes that the defendant County does not seek dismissal of Count XII of the complaint. However, plaintiffs' Twelfth Cause of Action asserts liability against the defendant County based on the principle of respondeat superior. It is long-settled that the language of § 1983, "read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable
Moreover, the County and Sheriff cannot be held vicariously liable for any alleged negligence on the part of the defendant deputy Sheriffs in this case. See Trisvan v. County of Monroe, 26 A.D.3d 875, 876 (4th Dep't 2006) ("we cannot say that the interest[s] of the [parties] `in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other'") (quoting Mondello v. New York Blood Ctr.-Greatere New Blood Program, 80 N.Y.2d 219, 226 (1992)). Further, it is well established that "[a] county may not be held responsible for the negligent acts of [a] Sheriff [or] his deputies on the theory of respondeat superior, in the absence of a local law assuming such responsibility". Marashian v. City of Utica, 214 A.D.2d 1034, 1034 (4th Dep't 1995); Smelts v. Meloni, 306 A.D.2d 872, 873 (4th Dep't 2003) lv. denied 100 N.Y.2d 516 (2003); see also Barr v. County of Albany, 50 N.Y.2d 247, 255-257 (1980). Here, plaintiffs have not suggested any such local law exists. See Smelts, 306 A.D.2d at 873. Thus, plaintiffs raise tort claims against the County in Count XII based on New York State law, those claims must be dismissed.
In the first instance, to establish liability for the intentional infliction of emotional distress, plaintiffs are required to show that defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Tartaro v. Allstate Indem. Co., 56 A.D.3d 758, 759 (2nd Dep't 2008). That same test is applied to causes of action for the negligent infliction of emotional distress (see Chime v. Sicuranza, 221 A.D.2d 401, 403 (2nd Dep't 1995) ("conduct complained of was not so outrageous in character and extreme in degree that it surpassed the limits of decency and would be regarded as atrocious and utterly intolerable in a civilized society"); Burrell v. Int'l Assn. of Firefighters, 216 A.D.2d 346, 356 (2nd Dep't 1995). There are
Second, because the actions alleged plaintiffs' complaint here were "intentional and deliberate and ... in their nature offensive," they are "outside the ambit of actionable negligence." Wahlstrom v. Metro-North Commuter R. Co., 89 F.Supp.2d 506, 531-32 (S.D.N.Y.2000) (quoting Jones v. Trane, 153 Misc.2d 822, 825 (Sup.Ct.1992); see also Prosser & Keeton, LAW OF TORTS § 10, at 46 (5th ed. 1984) ("There is, properly speaking, no such thing as a negligent assault."). This Court is mindful that "New York Courts have rejected uniformly such attempts to transmogrify intentional torts into `negligence.'" Schmidt v. Bishop, 779 F.Supp. 321, 324-25 (S.D.N.Y.1991) (dismissing negligence claim by plaintiff who alleged that her priest sexually abused her); see also Wilson v. Diocese of N.Y. of Episcopal Church, No. 96 Civ. 2400, 1998 WL 82921, at *6 (S.D.N.Y. Feb. 26, 1998) (citing cases). For this additional reason, plaintiffs' negligent infliction of emotional distress claim must be dismissed.
Plaintiffs assert in Count III, that their rights under the Fifth Amendment were violated by the Deputy Sheriffs because they were not provided with Miranda warnings or their right to counsel prior to being interrogated. However, the Second Circuit has clearly established that even if it can be shown that a statement was obtained by coercion, there is no Fifth Amendment violation until that statement is introduced against the defendant in a criminal proceeding. See Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir.1994). In Weaver, the Court held that to constitute a Fifth Amendment violation "use of the [coerced] statement at trial is not required," but that there must be some "use or derivative use of a compelled statement at any criminal proceeding against the declarant ." 40 F.3d at 535. Here, the complaint asserts that no criminal charges were ever brought or instituted against plaintiffs. Thus, the Court finds that plaintiffs' Fifth Amendment claims against the defendant Deputy Sheriffs in Count III must be dismissed.
Likewise, plaintiffs' Sixth Amendment claim against the defendant Deputy Sheriffs fails because a person's Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Kirby v. Illinois, 406 U.S. 682, 688 (1972). "Since plaintiff[s] had not been arrested or charged with any crime at the time of questioning, [their] Sixth Amendment right[s] had yet to attach." Krug v. County of Rennselaer, 559 F.Supp.2d 223, 246 (N.D.N.Y.2008) (citing Contes v. City of New York, 1999 WL 500140, at *8 (S.D.N .Y. July 14, 1999) (balance of citations omitted)). Consequently, plaintiffs' Sixth Amendment Claims against the Deputy Sheriffs in Count III must be dismissed.
As referenced above, plaintiffs have stated a viable claim against the defendant Deputies under § 1983 for violation of their federally protected rights. Thus, plaintiff's duplicative claim against the defendant Deputies under the New York State Constitution in Count IV for violation of these rights must be dismissed.
Plaintiffs seek punitive damages against the County which claim is barred as a matter of law. See Sharapata v. Town of Islip, 56 N.Y.2d 332, 336 (1982). Thus, plaintiffs' punitive damages claim against the County must be dismissed.
Plaintiffs argues that Meleck, a private citizen, acted under color of state law. In essence, they claim, Meleck lied to the defendant Deputy Sheriffs, who then unlawfully invaded plaintiffs' home and assaulted them, although no criminal charges were ever brought against them.
There are circumstances under which conduct "`that is formally "private" may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.' "Kia P. v. McIntyre, 235 F.3d 749, 757 (2d Cir.2000) (quoting Perez v. Sugarman, 499 F.2d 761, 764-65 (2d Cir.1974)) (additional citation omitted). However, "[f]or a private individual or entity to be deemed to have been acting under color of state law, the allegedly unconstitutional conduct of which plaintiff complains must be `fairly attributable to the state.'" Bishop v. Toys "R" Us-NY LLC, 414 F.Supp.2d 385, 396 (S.D.N.Y.2006) (quoting Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003)) (additional internal quotation marks omitted), cert. denied, 539 U.S. 942 (2003). Conduct will be "fairly attributable to the state" where there is "`such a close nexus between the [s]tate and the challenged action that seemingly private behavior may be fairly treated as that of the [s]tate itself.'" Bishop, 414 F.Supp.2d at 396 (quoting Tancredi, 316 F.3d at 312).
Here, there is no allegation in the complaint of an agreement, a plan or meeting of the minds between Meleck and the defendant Deputy Sheriffs to violate plaintiffs' rights. Although plaintiffs contend that Meleck instigated the invasion of their home by providing false information to the defendant Deputies, they offer no evidence of a conspiracy. Indeed, as the Court stated in Concepcion v. City of New York, 2008 WL 2020363, *7 (S.D.N.Y. May 07, 2008):
Thus, the Court finds that Counts I, II, and III, to the extent that they assert claims against Meleck under 42 U.S.C. § 1983, must be dismissed.
As referenced above, "[n]o explicit constitutional or statutory authority sanctions a private right of action for violations of the New York State Constitution," Wahad, 994 F.Supp. at 238 (citing Brown, 89 N.Y.2d at 186), where such an action would not pass muster if properly pled in a § 1983 action. Thus, plaintiff's claim in Count IV against Meleck under the New York Constitution must be dismissed.
Plaintiffs include defendant Meleck in their claims against "all defendants" for violations of various state tort laws, including assault, battery, false arrest and failure to intervene. Obviously, Meleck was not present when the defendant Deputy Sheriffs went to plaintiffs' home and committed the alleged torts upon them. In the absence of factual allegations or predatory acts by Meleck demonstrating or suggesting that Meleck was personally involved in these intentional acts, these claims must be dismissed as against him. Consequently, the Court finds that Counts V, VI, VII, VIII, IX and X must be dismissed insofar as they assert claims against defendant Meleck.
A statement is defamatory if "`it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.'" Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 (1977), cert. denied, 434 U.S. 969 (1977). To establish a defamation claim, New York law requires that a plaintiff prove "(1) an oral defamatory statement of fact, (2) regarding the plaintiff, (3) published to a third party by the defendant, and (4) injury to the plaintiff." Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 409 (2d Cir.2000). A communication made by an individual to a law enforcement officer is deemed a "qualified privelege" for purposes of measuring immunity from suit. See Toker v. Pollak, 44 N.Y.2d 211, 220 (1978):
Id. at 221 (quoting GATLEY, LIBEL AND SLANDER (3d ed.), p. 216.))
To puncture the qualified privilege and establish liability, a plaintiff must show that the defendant made untrue statements and abused the privilege by "acting beyond the scope of the privilege, acting with common law malice, or acting with knowledge that the statement was false or with a reckless disregard as to its truth." Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 410 (2d Cir.2000). See also Golden v. Stiso, 279 A.D.2d 607, 608 (2d Dep't 2001) (holding that plaintiff has burden to show that defendant was motivated "solely by malice" to puncture qualified privilege). Malice is defined as either a reckless disregard for the truth, or a motivation arising from spite and ill will. Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992). To show a reckless disregard for the truth, there "`must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth'" of his or her statements. Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1964)).
Here, plaintiffs assert that Meleck knew de Ratafia was not a "dangerous person." Further, the complaint alleges that Meleck knew de Ratafia had not made "veiled threats" to him, had no intention of hurting him and knew de Ratafia had not drugged Meleck's drink as he claimed to the defendant Deputy Sheriffs on October 16, 2011. Plaintiffs assert that Meleck made these false statements maliciously. The Court notes that the various cases defendants rely in support of their motion to dismiss are summary judgment cases, which are inapposite to the present 12(b)(6) motion. The Court finds that, crediting plaintiffs' allegations at this early stage of the litigation, they have sufficiently stated a claim for defamation against defendant Meleck.
To sustain a claim for intentional infliction of emotional distress (hereinafter, "IIED"), a plaintiff must demonstrate: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993)). As the Court explained in Campoverde v. Sony Pictures Entertainment, No. 01 Civ. 7775, 2002 WL 31163804 at *11 (S.D.N.Y. Sept. 30, 2002), "New York courts have imposed a very high threshold for intentional infliction of emotional distress claims, requiring that the conduct must be so outrageous and extreme `as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, (1983)). The question of whether a complaint adequately alleges such grievous allegations is a question to be determined by the Court. See Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.1999) (affirming dismissal of a claim for IIED on the grounds that the complaint failed to allege sufficiently egregious acts, and stating that "[w]hether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance").
The Court determines that the conduct alleged in plaintiffs' complaint insofar as the claims against defendant Meleck fails to meet the extremely high threshold established under New York law for maintenance of either an IIED or NIED claim. In Campoverde, for example, the court dismissed a claim for IIED even where the operative complaint alleged that the defendants' employees were "abusive" and "threatening," "kept plaintiffs behind a shut and guarded door" while refusing to let them leave, and ultimately threw them onto the street, concluding that the acts alleged were not sufficiently egregious to meet the high standards established for such claims. Campoverde, 2002 WL 31163804 at *12. Unlike Campoverde, plaintiffs herein have not even alleged in their complaint that defendant Meleck made abusive and threatening statements, nor made any deliberate falsehoods beyond the giving the allegedly false statements to the defendant Deputy Sheriffs. Compare also Kaminski v. United Parcel Service, 120 A.D.2d 409, 412 (1st Dep't 1986) (concluding that a former United Parcel Service employee who was allegedly locked in a room with supervisors and was for more than three hours subjected to threats, coercion, harassment and obscene and aggressive language had adequately stated an IIED claim); Bender, 78 F.3d at 791 (concluding that plaintiff who had allegedly been subjected to physical abuse and obscene and aggressive language by arresting police officer while under the control of the officer had sustained her IIED claim).
Nor have plaintiffs alleged any course of conduct or scheme by Meleck with the intent to cause emotional distress of the type that has survived motions to dismiss. See e.g., Mejia v. City of New York, 119 F.Supp.2d 232, 285 (E.D.N.Y.2000) (concluding that an alleged extended course of conduct intended to cause emotional distress could give rise to recovery, even if "certain of plaintiffs' allegations would not, by themselves, necessarily rise to the level of extremity and outrageousness to support" such a claim), and Bower v. Weisman, 639 F.Supp. 532, 541 (S.D.N.Y.1986) (concluding that defendant who allegedly "embarked upon a course of conduct that was designed to intimidate, threaten and humiliate the plaintiff" could be found liable for IIED).
Here, plaintiffs assert that Meleck made false allegations to the defendant Deputy Sheriffs when he asked them to speak to de Ratafia on October 16, 2011. These allegations do not describe conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Brown v. Sear Roebuck & Co., 297 A.D.2d 205, 212 (1st Dep't 2002); are insufficient; Druschke v. Banana Republic, Inc., 359 F.Supp.2d 308, 314 (S.D.N.Y.2005) (allegationsby customer against retail clothing store that store employees called the police and falsely told police that customer created fraudulent receipt from scratch did not state claim for intentional infliction of emotional distress absent allegations of conduct that went beyond all possible bounds of decency). Moreover, plaintiffs assert in the complaint that Meleck's conduct was intentional and, as referenced above, if his actions were allegedly "intentional and deliberate in their nature ..." they are "outside the ambit of actionable negligence." Jones, 153 Misc.2d at 825. Consequently, the Court finds that plaintiffs' intentional and negligent infliction of emotional distress claims against defendant Meleck in Counts XIV and XV must be dismissed.
Counsel for defendant Meleck argues correctly that federal law does not provide a basis for contribution for liability under Section 1983. Crews v. County of Nassau, 612 F.Supp.2d 199, 210 (E.D.N.Y.2009). As a further matter, since the County defendants have not interposed any claims against Meleck concerning their liability on plaintiffs' common law claims, the Court will not deny Meleck's motion to dismiss the complaint on the basis of mere hypothetical liability for contribution claims that have not yet been asserted against Meleck.
Based on the foregoing, it is hereby
ORDERED that the motion to dismiss for failure to state a claim by defendant Columbia County (Dkt. No. 76) is GRANTED as follows:
It is hereby ORDERED that the all of the claims in the complaint against defendant Harrison in his official and personal capacities are DISMISSED with prejudice; and it is further
ORDERED that the all of the claims in the complaint against the defendant Columbia County are DISMISSED with prejudice; and it is further
ORDERED that the claims against the defendants Proper, Hyson and Rose in their official capacities are DISMISSED with prejudice; and it is further
ORDERED that the claims against defendants Proper, Hyson and Rose in their individual capacities in Count III (Fifth and Sixth Amendment Claims) are DISMISSED with prejudice; and it is further
ORDERED that the claims against defendants Proper, Hyson and Rose in their individual capacities (New York Constitutional Claim) is DISMISSED with prejudice; and it is further
ORDERED that the claim for injunctive relief against defendants Proper, Hyson and Rose in their individual capacities in Count XVI is DISMISSED with prejudice; and it is further
ORDERED that the motion to dismiss for failure to state a claim by defendant Meleck (Dkt. No. 78) is GRANTED in part and DENIED in part as follows:
It is hereby ORDERED that the claims against defendant Meleck in Counts I, II, III, X, and XI, to the extent that they assert liability pursuant to 42 U.S.C. § 1983 are DISMISSED with prejudice; and it is further
ORDERED that the claims against defendant Meleck in Counts V, VI, VII, VIII, IX and X (New York State and Common Law Claims) are DISMISSED; and it is further
ORDERED that the motion to dismiss the claim against defendant Meleck in Count XIII (Defamation) is DENIED; and it is further
ORDERED that the claims against defendant Meleck in Counts XIV and XV (Intentional and Negligent Infliction of Emotional Distress) are DISMISSED; and it is further
ORDERED that the motion by Columbia County (Dkt. No. 80) objecting to dismissal of defendant Meleck from this action is DENIED.
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2013 WL 5423871
Jerjuan Easton, New York, NY, pro se.
Susan P. Scharfstein, Esq., New York City Law Department, New York, NY, for Defendants.
On August 24, 2004, shortly before 5:00 p.m., Polanco observed Easton smoking marijuana on a public sidewalk in Brooklyn, New York. Polanco arrested Easton on charges of criminal possession of marijuana and searched Easton's pockets, where Polanco found a small plastic bag of marijuana. Easton was transported to the police station and processed, whereupon it was discovered that he had $1,000 in cash on his person.
Easton alleges that Polanco then took him into a bathroom at the precinct, where no other persons were present, and told Easton to disrobe, lift his testicles, turn around, squat, expose his private parts and cough. During this time, according to Easton, Polanco looked at him with sexual interest, which made him feel uncomfortable. Afterwards, according to Easton, Polanco gave him his clothes; Easton acknowledges that he was not injured, or even touched, during the alleged strip-search. Polanco, for his part, does not recall whether this incident occurred at all.
Easton was prosecuted by the Brooklyn District Attorney's office on the possession charge, later accepting an adjournment in contemplation of dismissal pursuant to New York Criminal Procedure Law § 170.56. The charges against Easton were dismissed in August 2005.
On September 3, 2004, Easton timely served a written notice of claim upon the City and the NYPD in accordance with Section 50-e of the General Municipal Law. After the City refused to pay Easton's claim, he timely filed his complaint on April 15, 2005. The complaint asserts claims for constitutional violations pursuant to 42 U.S.C. § 1983 as well as claims under the common law of New York. Under § 1983, Easton alleges false arrest and imprisonment, illegal strip search and excessive force against Polanco; he also asserts municipal liability against the City. Under state law, Easton asserts causes of action against Polanco for assault, prima facie tort and intentional infliction of emotional distress. At the time Easton filed suit, he was represented by counsel.
Discovery came to a close on March 12, 2007. On June 4, 2007, defendants' counsel wrote a letter to the Court expressing defendants' intent to move for summary judgment. Two days later, Easton's counsel moved to withdraw, stating that he and Easton "[could not] agree on how best to respond to the motion currently pending before [the][C]ourt," June 6, 2008 Letter of Gary N. Rawlins (Docket Entry # 41) at 1, and that Easton "ha[d] indicated that he would like the opportunity to obtain new counsel," id. On July 1, 2008, Easton's counsel again wrote to the Court, stating that he and Easton "ha[d] discussed [Easton's] case at length and [its] respective strengths and weaknesses" and that "[d]espite [his] counsel, [Easton desired] to pursue a course of action that [was] very different from the course of action [he] recommend[ed]." July 1, 2008 letter of Gary N. Rawlins (Docket Entry # 43) at 1. Easton's counsel again stated that "[i]t [was his] understanding that [Easton was] currently seeking the advice of other attorneys with regard to his case and with regard to the pending summary judgment motion." Id.
On September 26, 2008, defendants filed their motion for summary judgment as to all claims against them. Three days later, defendants served their motion papers on Easton by first-class mail, including the Notice of Motion to Pro Se Litigants required by Local Civil Rule 56.2. See Declaration of Service (Docket Entry # 52). On September 30, 2008, the Court ordered Easton to "file and serve his opposition to defendants' motion by October 31, 2008" and warned that "[f]ailure to do so may result in the Court deciding [the] motion as unopposed ... or dismissing [Easton's] action for failure to prosecute." See Order (Docket Entry # 53). This Order was mailed to Easton. See id. Although over seven months have elapsed since the Court's October 31, 2008 deadline, the Court has not received Easton's opposition papers—or, indeed, any further communication from Easton.
A district court must grant summary judgment "whenever it determines that there is no genuine issue of material fact to be tried." Savino v. City of New York, 331 F.3d 63, 71 (2d Cir.2003) (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265). "A genuine issue of material fact exists `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In considering a summary judgment motion, the Court must "resolve all ambiguities and draw all factual inferences in favor of the nonmoving party." Id. (citing Anderson, 477 U.S. at 255).
"A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (internal citation omitted). "The existence of probable cause to arrest ... is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Id. (internal quotation marks and citation omitted). The same is true for an action for false imprisonment. See Rutigliano v. City of New York, No. 08-cv-0531, 2009 WL 1174657, at *2 (2d Cir. May 1, 2009) ("[A] finding of probable cause will defeat [New York] state tort claims for ... false imprisonment, and hence § 1983 false imprisonment claims premised on New York law." (internal quotation marks and citation omitted)).
"The Fourth Amendment requires an individualized reasonable suspicion that [a misdeameanor] arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest before she may be lawfully subjected to a strip search." Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir.2008) (internal quotation marks omitted) (alteration in original). "A reasonable suspicion of wrongdoing is something stronger than a mere hunch, but something weaker than probable cause." Id. "To establish reasonable suspicion, [officers] must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience. The standard requires individualized suspicion, specifically directed to the person who is targeted for the strip search." Id.
Here, the Court finds, based on the undisputed facts, that there was reasonable suspicion Easton was concealing contraband. It is highly relevant that Easton was smoking marijuana at the time he was arrested and that a bag of marijuana was found on his person when he was searched incident to his arrest. See Elk v. Townson, 839 F.Supp. 1047, 1052 ("[Arrestee's] presence in a vehicle which smelled strongly of marijuana and in which marijuana was found both on another occupant and in a container located near him gave the Sheriff's Office reasonable grounds to suspect that [he] might be hiding drugs on his person."); cf. Hartline, 546 F.3d at 101 (finding no reasonable suspicion for strip search where, inter alia, arresting officer "had no reason to believe that [arrestee] was under the influence of narcotics at the time of her arrest ... [and] found no useable narcotics in [arrestee's] vehicle").
And while this alone may not have been enough to justify the alleged strip search, see id. ("[I]t is [not] reasonable to strip search every inmate booked on a drug related charge." (quoting Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir.1997))), the Court relies on the fact that Easton was carrying $1,000 in cash. In light of the circumstances, this allows the "rational inference" that Easton had been engaged in the sale or distribution of marijuana at the time of his arrest and that he would therefore be concealing additional quantities of the drug on his person. See Wachtler v. County of Herkimer, 35 F.3d 77, 80 (2d Cir.1994) ("[Arrestee's] possession of $1,000 in cash might have seemed a ground for suspecting drug trafficking and the possible presence of contraband."); Lee v. Perez, 175 F.Supp.2d 673, 680 (stating that, inter alia, "the presence on [an arrestee's] person of a substantial amount of cash" may "raise[ ] the suspicion that [the arrestee] was involved in the drug trade, and thus might be carrying contraband on his person.").
"An official's use of force violates the [constitution] when two requirements are met: the use of force `must be, objectively, sufficiently serious,' and `the prison official involved must have a sufficiently culpable state of mind.'" Bellotto v. County of Orange, 248 F. App'x 232, 235 (2d Cir.2007) (quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997)). "[S]ome degree of injury is ordinarily required" to satisfy the objective prong, although the injury need not be "serious" or "significant" "as long as the amount of force used is not de minimis." United States v. Walsh, 194 F.3d 37, 50 (2d Cir.1999).
Easton fails to satisfy the objective prong, as he does not allege a "use of force [that is] ... sufficiently serious," Bellotto, 248 F. App'x at 235; in fact, he has not adduced evidence that Polanco used "force" on him at all—merely that Polanco verbally ordered him to disrobe and ogled him.
Easton alleges that the City (1) "failed to intervene to prevent or end [Polanco's] unlawful conduct"; (2) "displayed a deliberate indifference to [Easton's] rights to be free from unreasonable searches and seizures"; and (3) "acted intentionally, willfully, maliciously, with reckless disregard for and deliberate indifference to [Easton's] rights and physical well being." Compl. ¶ ¶ 24-26. The Court construes these as municipal-liability claims under Monell v. Dep't of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Furthermore, to succeed under Monell, a plaintiff must establish that the violation of his rights resulted from an official municipal policy, custom or practice. Monell, 436 U.S. at at 690-91; see also Zahra v. Town of Southhold, 48 F.3d 674, 685 (2d Cir.1995). "Though this does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation, a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (citations omitted). Here, Easton alleges only a single incident involving an actor below the policy-making level and has adduced no evidence of any official City policy, custom or practice. For this reason as well, Easton's municipal liability claims must fail.
Pursuant to 28 U.S.C. § 1367(c)(3), a district court may, "in its discretion, ... decline to exercise supplemental jurisdiction over state law claims if it has dismissed all federal claims." Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 103 (2d Cir.1998). The Supreme Court has counseled that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). This is such a case; accordingly, the Court declines to exercise jurisdiction over Easton's state-law claims.
For the reasons described, defendants' motion for summary judgment is granted.
Not Reported in F.Supp.2d, 2009 WL 1767725
JAMES C. FRANCIS, IV, United States Magistrate Judge.
Mr. Smith alleges that on April 9, 2014, while a pre-trial detainee at the Otis Bantum Correctional Center ("OBCC"), he was visited by a woman. (Visit Search, attached as part of Exh. 1 to Complaint ("Compl."), at 1; Affidavit of Jatiek Smith dated May 13, 2015 ("Smith Aff."), at 3).
In his affidavit opposing the defendants' motion to dismiss, Mr. Smith adds some allegations related to the searches. He asserts that he has submitted to directives to "show [his] entire exposed body to other detainees" out of "fear of being beaten." (Smith Aff. at 3). He further asserts that officers fail to properly use partitions to prevent inmates being strip searched from being visible to the facility's cameras; that there are no "safe guards [sic] in place to assure that [his] naked image will not be re-used for someone's sexual gratification"; and that the searches "only serve[ ] the purpose of intimidating, degrading, and punishing." (Smith Aff. at 4-5). The defendants seek dismissal of the plaintiff's claims on the grounds that (1) he has failed to state a claim, (2) his claim for injunctive relief is moot, (3) he has failed to allege the personal involvement of Commissioner Ponte and Warden Cooper, and (4) he has failed to state a claim for municipal liability pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The parties have consented to my jurisdiction for all purposes under 28 U.S.C. § 636(c).
A motion under Rule 12(c) of the Federal Rules of Civil Procedure applies the familiar standard governing a motion to dismiss under Rule 12(b)(6). Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004). In considering a Rule 12(b)(6) motion, a court must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.
"Generally, strip searches have been upheld as a reasonable security measure within a correctional facility even in the absence of probable cause as long as they are related to a legitimate penological goal." Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318, 323 (S.D.N.Y.2006), aff'd, 461 F. App'x 18 (2d Cir.2012). The Supreme Court has approved the practice of "visual strip searches of inmates' body cavities after contact visits with a person from outside the institution," Vaughn v. Strickland, Nos. 12 Civ. 2696, 12 Civ. 3335, 12 Civ. 2995, 12 Civ. 3333, 2013 WL 3481413, at *5 (S.D.N.Y. July 11, 2013) (citing Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)), as well as routine strip searches performed on arrestees when entering the general population of a facility, Florence v. Board of Chosen Freeholders of Burlington, ___ U.S. ___, ___, 132 S.Ct. 1510, 1513, 1523, 182 L.Ed.2d 566 (2012). The Second Circuit has found random visual body cavity searches reasonable. See Covino v. Patrissi, 967 F.2d 73, 79 (2d Cir.1992); Vaughn, 2013 WL 3481413, at *4 (citing Covino). Courts in this district have applied those precedents to find that strip searches of inmates upon departure and return from court appearances are constitutional given the interest in preventing contraband from being moved into or out of jail facilities. See Montgomery v. Hall, No. 11 Civ. 4645, 2013 WL 1982920, at *4 (S.D.N.Y. May 15, 2013), report and recommendation adopted, 2013 WL 3816706 (S.D.N.Y. July 22, 2013); Israel v. City of New York, No. 11 Civ. 7726, 2012 WL 4762082, at *3 (S.D.N.Y. Oct.5, 2012); Mvers v. City of New York, No. 11 Civ. 8525, 2012 WL 3776707, at *9 (S.D.N.Y. Aug.29, 2012). Thus, the policy of strip searching inmates after contact visits or upon departing for court appearances does not, in itself, violate the Constitution. Mr. Smith objects to the fact that the strip searches were conducted in view of the institution's video cameras and other inmates. However, neither the presence of cameras nor the presence of other inmates and employees of a correctional facility makes an otherwise constitutional strip search unconstitutional. See Peek v. City of New York, No. 13 Civ. 4488, 2014 WL 4160229, at *2 (S.D.N.Y. Aug.18, 2014) ("Without more, [ ] the presence of a camera at a strip search does not amount to a constitutional violation."); Montgomery, 2013 WL 1982920, at *4 ("[T]he constitutionality of a strip search is not negated by the presence of other inmates and employees of the facility—of either sex—during the search."); Israel, 2012 WL 4762082, at *3 ("These searches were not unreasonable, as they were in line with DOC policy to strip search prisoners upon entering and leaving the confines of the facility which serves the legitimate interest of preventing the smuggling of contraband. The presence of other inmates and officers, males and females, does not alter this determination." (internal citations and quotation marks omitted)). Rather, the plaintiff must allege facts suggesting that the search did not serve a legitimate penological purpose, but was instead designed to intimidate, harass, or embarrass him, see, e.g., George v. City of New York, Nos. 12 Civ. 6365, 13 Civ. 3511, 13 Civ. 3514, 2013 WL 5943206, at *7 (S.D.N.Y. Nov.6, 2013) ("[S]trip searches performed with no legitimate penological purpose but merely to intimidate, harass, or punish are impermissible."), or was an "exaggerated response" to legitimate concerns, Esquilin v. Schriro, No. 13 Civ. 3724, 2014 WL 2795408, at *4 (S.D.N.Y. June 19, 2014) (citing Florence, ___ U.S. at ___, 132 S.Ct. at 1517, and Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)).
915 F.Supp.2d 314, 357 (E.D.N.Y.2013). The court held that the complaint sufficiently alleged that these searches "were conducted to punish and humiliate, without any penological justification." Id. And Correction Officers Benevolent Association of Rockland County v. Kralik, No. 04 Civ. 2199, 2011 WL 1236135, at *11 & nn. 13-14 (S.D.N.Y. March 30, 2011), suggests that strip searches conducted in "regular and close view[ ]" of persons of the opposite sex of the inmate may violate the Fourth Amendment.
Here, Mr. Smith's complaint states that the searches occurred after a contact visit or prior to transport away from the facility —that is, in situations where the legitimate purpose of preventing the import or export of contraband is clear. This belies the allegation in his affidavit that the searches "only serve[d] the purpose of intimidating, degrading, and punishing." (Smith Aff. at 5). There is no indication that the presence of other inmates was anything but incidental to the searches, a happenstance of the physical space in which the searches are carried out. For instance, there are no allegations suggesting that the search locations were chosen in order to expose undressed inmates to the gaze of others. The mere fact that available screening partitions are not used does not change the calculus where the allegations indicate that the searches, even if performed in front of others, are objectively reasonable tactics designed to prevent contraband from entering or leaving the facility. Nor does Mr. Smith's assertion that strip searches are performed in more private settings at other correctional facilities (Smith Aff. at 6-7) establish that the practice at OBCC is unconstitutional. Mr. Smith further indicates that he succumbed to the searches out of fear of violence. (Smith Aff. at 3). But, if the searches at issue were otherwise constitutional, this vague allegation of fear of reprisal does not transform them into illegal searches.
The Second Circuit has held that a pro se litigant should be afforded at least one opportunity to "amend his complaint prior to its dismissal for failure to state a claim, unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir.1999) (per curiam). Amending this complaint to state a claim will not be easy, especially because, as discussed above, the strip searches apparently had a legitimate penological purpose. However, there is at least a remote prospect that the plaintiff could state a valid claim related to insufficiently private strip searches, and so he may amend his complaint.
In the interest of judicial efficiency, I will provide some guidance to the parties in the event that Mr. Smith chooses to file an amended complaint. First, the defendants are incorrect that Mr. Smith's claim for injunctive relief is currently moot. To be sure, "[a] prisoner's transfer to a different correctional facility generally moots his request for injunctive relief against employees of the transferor facility," Thompson v. Carter, 284 F.3d 411, 415 (2d Cir.2002), because "with the prisoner's transfer[,] `the problem sought to be remedied has ceased" and there is "`no reasonable expectation that the wrong will be repeated,'" Rosado v. Herard, No. 12 Civ. 8943, 2014 WL 1303513, at *13 n. 8 (S.D.N.Y. March 25, 2014) (quoting Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (per curiam)). However, a claim will not be deemed moot if it is capable of repetition, yet evades review, which occurs when "(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). Here, Mr. Smith notes that he has "been constantly moved since filing [his] grievances and suits" and "can be moved back to OBCC ... at any time." (Smith Aff. at 7); cf. Wingate v. Gives, No. 05 Civ. 1872, 2008 WL 5649089, at *17 (S.D.N.Y. April 13, 2008) (refusing to dismiss claim for injunctive relief of plaintiff who had been transferred out of Rikers Island facility and had thereafter been transferred back). Furthermore, OBCC,
Lloyd v. City of New York, 43 F.Supp.3d 254, 270 (S.D.N.Y.2014) (footnote omitted). For these reasons, Mr. Smith's claim for injunctive relief "qualifies for the `capable of repetition, yet evading review' exception" to the mootness doctrine. Id.
Finally, any claim against the City of New York must allege facts tending to show that "the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality." Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.2012). Allegations that a constitutional violation merely occurred, even repeatedly, are insufficient against the City unless they show, for example, that the deprivation resulted from an official policy or from a custom so entrenched and well-established that it constitutes a practice "with the force of law." Patterson v. County of Oneida. New York, 375 F.3d 206, 226 (2d Cir.2004) (internal quotation marks omitted).
For the reasons discussed above, the defendants' motion for judgment on the pleadings (Docket no. 25) is granted, and the complaint is dismissed without prejudice to the plaintiff filing an amended complaint within thirty days of the date of this order. If no such amended complaint is filed, the Clerk of Court shall enter judgment for the defendants and close the case. Any appeal from this decision would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Not Reported in F.Supp.3d, 2015 WL 3929621
Andre Thompson, New York, NY, pro se.
Kate Fay McMahon, New York City Law Department, New York, NY, for Defendants.
P. Kevin Castel, United States District Judge
This action was filed on February 2, 2016. (Dkt. 2.) In an Order dated March 18, 2016, then Chief Judge Loretta Preska wrote that "[p]laintiff's allegations that he is a pretrial detainee facing misdemeanor charges and is strip searched when going to and from court, without more, are insufficient to state a claim." (Dkt. 5) (citing
Plaintiff filed an Amended Complaint on April 7, 2016. (Dkt. 6.) In an Order dated July 13, 2016, this Court set a briefing schedule for the defendant's proposed motion to dismiss, requiring any opposition from the plaintiff by October 10, 2016. (Dkt. 14.) On September 8, 2016, defendant City of New York moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. (Dkt. 15.) It is now more than seven months since the defendant filed its motion to dismiss, and more than six months since the deadline for the plaintiff's response has passed. (Dkt. 14.) The plaintiff has not submitted opposition papers, and has not written the Court to request an extension. As a result, the motion is unopposed. When considering a Rule 12(b)(6) motion, the Court draws all reasonable inferences in the plaintiff's favor and accepts as true the facts alleged in the complaint.
Plaintiff alleges that he filed grievances at AMKC and GMDC regarding these strip searches. (
The Amended Complaint fails to cure the deficiencies identified by Chief Judge Preska and is dismissed for substantially the same reasons noted in Chief Judge Preska's Order of March 18, 2016. The general practice of strip searching a detainee during housing searches and on the way to and from court appearances is not unconstitutional, even if the detainee is accused only of a misdemeanor.
Plaintiff's argument that there was no "cause" to strip search him is unavailing because
SO ORDERED.
Not Reported in Fed. Supp., 2017 WL 1929552
Peter K. Levitt, United States Attorney's Office, Boston, MA, for United States of America.
Oscar Cruz, Jr., Federal Defender's Office, District of Massachusetts, Boston, MA, for Defendants.
SARIS, District Judge.
On January 31, 2008, James Connery, a Verizon employee, walked into the Framingham Police Department to report an incident. Earlier that day, Connery was at an intersection in Framingham when a blue or purple Dodge Charger, with a black racing stripe and large chrome wheels, began beeping its horn at him. Although he tried to elude the car, it continued to follow him. After he turned onto Route 9 West, the Dodge Charger pulled alongside him and forced him to pull over.
There were two black men in the car. The passenger was heavy set, about six feet three inches tall and three hundred pounds, with "prison tats" on his hands. He walked over to Connery's window and asked if he was a cop or a federal agent. After Connery said no, the man grabbed his Verizon identification, said it was fake, accused Connery of being a federal agent, and stated that "the feds are looking at me now."
The man grabbed Connery's wallet and began looking through it (presumably for police identification). Connery repeated that he was not a police officer. The man responded by stating, "I'm not trying to rob you, I don't need your money, I have my own." He then took out a large wad of money and showed it to Connery. The two men then drove away.
Connery described the second man as standing about five feet eight inches tall with a ponytail. Connery identified Doutre from a photo array as the person who had accused him of being a "fed." Connery was shown a second array and said that the only photo that looked familiar was that of Carvahlo, whom he said looked like the driver of the Dodge Charger, but he indicated that he was only about 75% sure. (Gov't Ex. 1.)
On the evening of February 1, 2008, at about 9:50 p.m., Detective Gutwill, a member of the Narcotics Unit, spoke by telephone multiple times with a confidential informant ("CI"), who told Gutwill that "O" was in town selling crack cocaine that night with a second man. A few days earlier, the CI had told Detective Gutwill about "O", who would come from Boston every so often with someone else and sell crack for a few hours in Framingham. The CI described "O" as a very large black male with a scar on his face and several homemade tattoos on his hands. The CI said that "O" was currently being driven around town by a smaller black male, who had a ponytail, and that they were driving a newer looking Dodge Charger that was either black or purple with bright chrome wheels.
The CI told Gutwill that, within the last hour, he observed "O" with about 4-5 ounces of cocaine. "O" had made statements to the CI that he would kill anyone who reported him to the police. The CI also said that "O" had bragged about having a gun.
Based on the information that the CI provided, particularly the description of "O" and the Dodge Charger, Gutwill believed that the individuals the CI identified were the two men involved in the January 31, 2008 incident with the Verizon employee. (Gov't Ex. 4.)
Detective Gutwill was riding in an unmarked car with Detective Sean Riley, another member of the Narcotics Unit. Detective Sergeant Brown and Detective Pini, also members of the unit, were in a separate unmarked car. Brown and Pini had read the incident report involving the Verizon employee, and Gutwill had communicated the information he had obtained from the CI to the other officers.
The CI called Detective Gutwill back and said that "O" and his companion were heading to 157 Second Street, apartment number 277, in Framingham. The CI said that the two men were in the Dodge Charger and that, when they got to the apartment, they were going to cook up the cocaine into crack and then bag it for resale. According to the CI, the two men would be at the apartment in a few minutes and would be inside for less than an hour. The CI stated that if one person was in the car, there would be no drugs present, but if both men were in the car, the drugs would be there as well. (Gov't Ex. 2; Gov't Ex. 4.)
At about 10 p.m., Brown and Pini set up surveillance in the back of the multi-unit apartment building at 157 Second Street, the address identified by the CI. Gutwill and Riley set up in front. As they arrived, Brown and Pini saw a black and purple Dodge Charger, bearing Massachusetts registration number 44MJ85, with chrome wheels and a racing stripe, parked, unoccupied, in the rear parking lot of 157 Second Street. After about 15 minutes, Brown and Pini saw the Dodge Charger leave the parking lot and drive onto Second Street.
Brown and Pini advised Gutwill and Riley and then followed the Dodge Charger. Gutwill and Riley followed after Brown and Pini. At the hearing, there was inconsistent testimony as to whether the Dodge Charger ran a red light while taking a left turn onto Blandin Avenue, but all the officers agreed that the car made an illegal U-turn when it performed a U-turn across a double yellow line.
Detective Pini contacted dispatch and requested that a marked unit conduct a traffic stop on the Dodge Charger. Before a marked unit could respond, however, the Dodge Charger made a left turn onto Marble Street and parallel parked in front of Framingham Liquors. The driver, the man with the ponytail, subsequently identified as Carvahlo, got out of the car. The passenger, subsequently identified as Doutre, remained in the car.
Sergeant Brown walked over to Carvahlo and asked him to place his hands against the wall of the liquor store. Carvahlo complied. Brown stood with Carvahlo on the sidewalk by the entrance to the liquor store while Detective Pini engaged Doutre. Detectives Riley and Gutwill arrived and took up positions at the back of the driver and passenger sides of the car respectively.
At the passenger side window of the Dodge Charger, Pini could see that Doutre matched the description given by the Verizon employee. Pini saw that Doutre had a container of food on his lap. Pini saw Doutre look at him and then move his left hand from his food container to the crotch of his pants and out of Pini's view. For safety reasons, Pini told Doutre to put his hands in front of him such that Pini could see them. Doutre initially complied but then bent his body forward, concealing his waist area, and again brought his left hand down toward his waist, out of Pini's view. Pini again told Doutre to put his hands in front of him and to sit up. When Doutre sat up, Pini saw that Doutre's pants were open and his penis was sticking out of his boxers. This led Pini to believe that Doutre was trying to conceal drugs or weapons in his pants.
Detective Pini told Doutre to get out of the car. When Doutre got out, Pini could see, in plain view, a plastic bag on the passenger seat containing a large white rock-like substance, which he recognized to be at least one ounce of crack cocaine. He arrested and handcuffed Doutre and then frisked him. The detectives subsequently found three plastic vials of marijuana in the center console of the car. At that point, Carvahlo was handcuffed.
Gutwill read Doutre his Miranda warnings. Doutre asked to speak with a lawyer. As Pini was escorting Doutre to a police cruiser, Doutre initiated conversation, asking Pini how long they had been watching him, and whether "that guy" was a "fed" (apparently referring to the Verizon employee).
Doutre and Carvahlo were brought to the Framingham Police Station for booking. Doutre and Carvahlo were separately booked and inventory searches of their bodies were conducted. Among other things, Doutre had $751 and Carvahlo had $151.
At the station, Carvahlo was provided with Miranda warnings. He waived orally and signed a consent form. Carvahlo was asked about the incident with the Verizon employee. He said that he was in the car when Doutre got out and went up to the "fed" who had been following them. Carvahlo denied getting out of the car and said that the "fed" handed Doutre his wallet. Carvahlo stated that the car belonged to his uncle. He denied knowing anything about the cocaine in the car and said he would not be involved with cocaine because he worked with children. (Gov't Ex. 2; Gov't Ex. 4.)
The officers here decided to conduct a strip search of Doutre because the CI had said that Doutre and Carvahlo had 4-5 ounces of crack but the officers had only recovered one ounce, and Doutre appeared to be attempting to hide something in his crotch area in the car. In the public booking area, the officers told Doutre to remove his shirt. Doutre became agitated. When Doutre pulled his shirt up, a bag of crack fell to the floor. After the officers recovered the crack, they conducted strip and visual body cavity searches of Doutre, but they did not recover any additional contraband. The police recovered a total of 43 bags of cocaine amounting to approximately 25 grams from Doutre's person.
After Doutre had been searched and Carvahlo had been interrogated, Detectives Gutwill and Pini began a strip search of Carvahlo, which had been approved by Detective Sergeant Brown, who supervised the search. The search of Carvahlo was based on the fact that the CI had said that Doutre and Carvahlo had 4-5 ounces of crack cocaine but the officers had only recovered approximately two ounces, that the CI had said that the two were a team and packaging the crack together, that Doutre had been trying to hide crack in his crotch area in the car, and that they had found additional crack on Doutre at the station.
Although Carvahlo had been cooperative until then, he initially refused to take off his clothes. Eventually, he removed his shirt, then his shoes, socks and eventually his pants. The officers asked Carvahlo to turn around and bend over. As he bent over, a plastic bag was revealed between his buttocks.
Detective Pini returned to 157 Second Street. Two people there told Pini that "O" and a man with a ponytail had been at the apartment earlier and had a large amount of crack cocaine, which they asked to package in the apartment. The two men had been there three times before. The two people in the apartment reported that they saw the two men with two large chunks of cocaine, the largest amount they had seen them possess. "O" gave them a $40 bag of crack cocaine to smoke as well as the shavings left over from cutting the drugs. Pini also found drug packaging materials in the apartment. (Gov't Ex. 3.)
1. Based on the detailed, first-hand information from their reliable confidential informant, and the report of the incident involving the Verizon employee, the police had reasonable suspicion that Carvahlo and Doutre were engaged in drug trafficking and had assaulted the Verizon employee. Not only were Carvahlo and Doutre in the unique Dodge Charger, described by both the Verizon employee and the CI, but their physical descriptions matched as well. Accordingly, the Terry stop of the driver and passenger was proper.
3. The police had reasonable suspicion to do a strip search of Doutre at the station. See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997) (holding that the reasonable suspicion standard governs strip searches of arrestees). Because Doutre was arrested for a drug trafficking crime, the police were justified in conducting a strip search. See United States v. Barnes, 506 F.3d 58, 62 (1st Cir.2007) (holding a strip search justified by defendant's arrest for a drug trafficking crime). Other facts also justify the strip search. During the stop, Doutre had continually moved his hands to his crotch area and opened his pants. See Kraushaar v. Flanigan, 45 F.3d 1040, 1046 (7th Cir.1995) (holding strip search reasonable where defendant made gestures as if attempting to hide something in his pants). Additionally, the informant had seen 4-5 ounces of cocaine earlier that night, but only about one ounce of cocaine was recovered from the car.
3. While a closer question, the police also had reasonable suspicion to do a strip search of Carvahlo because of his arrest for a drug trafficking crime. When Carvahlo bent over, the police saw a clear plastic bag between his buttocks. The order to bend over constitutes a visual body cavity search, or at least the first stage of such a search. I find that the police had reasonable particularized suspicion to justify such a search because the combined weight of the crack found on Doutre and in the car was about 54 grams (slightly less than two ounces), far less than the expected 4-5 ounces. Moreover, Doutre had been suspicious that the "feds" were following him and the police found crack cocaine hidden on his body. The police reasonably relied on the CI's estimate of the amount of crack as his reliability had been fully corroborated by the investigation, and the CI said that he personally observed the amount of crack in the defendants' possession. See Barnes, 506 F.3d at 62 (requiring a "more particularized suspicion that contraband is concealed" to justify visual body cavity search). Accordingly, the police had sufficient reasonable particularized suspicion to believe that Carvahlo had secreted the remaining crack in his bodily crevice.
Not Reported in F.Supp.2d, 2009 WL 1211048
