Youngs v. Fusaro et al

Filing 27

RULING (see attached) granting Defendants' 23 Motion for Summary Judgment. Accordingly, the Clerk is directed to close the file. Signed by Judge Charles S. Haight, Jr. on March 31, 2016.(Overbey, C.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
SEAN N. YOUNGS,

Plaintiff,
v.

Case No. 3:13-cv-476 (CSH)

LOUIS J. FUSARO, SR.,
W. T. MOLIS, JR.,
PATRICK MIKENS and
DELMAR CARTER,

MARCH 31 , 2016

Defendants

RULING ON MOTION FOR SUMMARY JUDGMENT

HAIGHT, Senior District Judge:
Plaintiff Sean N. Youngs claims, pursuant to 42 U.S.C. §§ 1983 and 1988, that
Defendants, members of the City of Norwich Police Department, deprived him of his Fourth and
Fourteenth Amendment rights by conducting a warrantless search of his business and by
revoking his vendor's permit for his hot dog cart without due process. Defendants move for
summary judgment under Federal Rule of Civil Procedure 56 on the merits or, alternatively, on
the ground of qualified immunity. This Ruling resolves the summary judgment motion.
I.
The following facts come from the parties' Local Rule 56(a)(1) and (2) statements and the
attached exhibits. The facts included here are undisputed.1 This case arises out of two separate,

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"In the Local Rule 56(a)(2) Statement, each denial of fact asserted by a moving party
'must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to
the facts at trial and/or (2) evidence that would be admissible at trial.' Failure to provide this
specific citation 'may result in the court deeming certain facts that are supported by the evidence
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but related, occurrences. First, Plaintiff's business, Who's Got Next Barber Shop, was searched
pursuant to a search warrant with a purportedly incorrect address listed. This search led to
Plaintiff's arrest after marijuana and other paraphernalia was found on the premises. Second,
Plaintiff's vending license for his hot dog stand was revoked by the Chief of Police subsequent to
his arrest without any opportunity for the Plaintiff to be heard. Plaintiff, Sean N. Youngs, also
known as "Pitt," owns "Who Got Next Barber Shop." Complaint, ¶ 4. Plaintiff asserts that his
business is located at 263 Central Avenue. Complaint, ¶ 4. At other times, he has described the
address as 263A Central Avenue. Exhibit C, p. 2.
On July 2, 2010, two of the Defendants, Detectives Mickens and Carter, obtained a
search
and seizure warrant for 261 Central Avenue, Norwich, Connecticut, 06360 after a several month
investigation into narcotics sales in the barber shop. Exhibit A-1. Judge Young of the Norwich
Superior Court granted the application. Id. The warrant describes the location as:
part of 261 Central Avenue, a large wooden structure, blue in color with white
window and door trim. The building is multi-leveled with two storefronts on the
first level and residential apartments and [sic] the second and third floors. Who's
next Barbershop is located on the street level of the building. The words "Who's
Next" are clearly written on the front window of the business and the numbers
261 are clearly posted on the mailbox next to the front door.

admitted.'" Cousino v. Muir, 2014 WL 3697879, at *1 (D. Conn. July 24, 2014) (citing L. Civ. R.
56(a)(3)). Furthermore, "a district court is obligated only to consider the materials [properly]
cited to it by the parties." Id. (quoting Morales v. New York State Department of Labor, 530 F.
App'x 13, 14 (2d Cir. 2013)). As in Cousino v. Muir, the Local Rule 56(a)(2) statement in this
case is deficient in pointing the Court to evidence supporting Plaintiff's denials of assertions in
Defendants' Local Rule 56(a)(1) statement. Rather surprisingly, Counsel for Plaintiff is the same
in both this case and in Cousino. Counsel is again reminded to adhere to the Local Rules when
preparing documents for submission to the Court. Furthermore, as in Cousino, where Defendants
have alleged facts and supported them by evidence, and these facts are not properly denied by
Plaintiff, complete with an assertion supported by evidence, they will be deemed admitted.
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Exhibit A-1, p. 1. There is no other barbershop at that location. Exhibit A, ¶ 11. Furthermore,
Defendant Mickens called the city assessor prior to executing the search warrant to confirm the
address. Exhibit A, p. 6. The Assessor for the City of Norwich stated, in an affidavit, that the
property at issue is known as 261 Central Avenue, and that there are no property locations
known as 263 Central Avenue or 263A Central Avenue. Exhibit D, p. 1.
The warrant was the result of an investigation beginning in January 2010. Exhibit A-2 p.
15. During the week of May 1, 2010, Detectives Mickens and Carter met with a Confidential
Informant ("CI") for the purpose of making a controlled purchase of marijuana from the
barbershop. Exhibit A, p. 4. The CI stated that he entered the barbershop, gave the plaintiff an
amount of money, and then received marijuana in return. Id. at 4-5. In a second controlled buy,
the CI entered the store adjacent to the barbershop, owned by L.D., a former business partner of
the Plaintiff, with L.D.. Id. at 5. The CI and L.D. then exited the shop and entered the
barbershop. Id. Upon leaving the barbershop, the CI met with Detective Mickens. Id. The CI
stated that he purchased the marijuana from the Plaintiff. Id. at 6.
On July 2, 2010, at approximately 2:41 p.m., members of the Norwich Police Department
executed the search and arrest warrants at Who's Next Barber Shop. Exhibit A, p. 6. Upon
entering the barber shop, Defendants found marijuana and several items related to the sale of the
narcotic. Id. at 18. During the search, members of the Norwich Police Department seized two
pieces of mail. Exhibit A-3, p. 18. The first was an letter addressed to: Sean Youngs, 261A
Central Avenue, Norwich, CT 06360. Id. The second was an AT&T flyer addressed to: Who's
Next Barbershop, 263 Central Avenue, Norwich, CT 06360. Id. The police also seized
marijuana, sandwich bags, a scale, and large amounts of U.S. currency. Id. at p. 17–20.

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There was also an interior door between the shop owned by L.D., which sold incense and
fragrant oils, and the barber shop. Exhibit A, ¶ 11. Plaintiff characterized the shop owned by
L.D. as being located at 261A Central Avenue. Exhibit C, p. 5. Furthermore,Plaintiff was
arrested during the search. Exhibit A-3, p. 17.
On July 7, 2010, Plaintiff's hot dog vendors license was revoked by Defendants
Fusaro and Molis. The revocation was based solely on his arrest by Defendants Mickens and
Carter on July 2. Exhibit F-1, p. 1. Defendant Lieutenant Molis sent the letter revoking Plaintiff's
vendor's permit on behalf of Chief Louis J. Fusaro, Sr. Id.; Exhibit G. The Defendants revoked
Plainitiff's license under Connecticut General Statute 21-37 and under City of Norwich
Ordinance Section 15-5. Exhibit F-2, p. 3. City of Norwich Ordinance Section 15-5 regarding
vendor's permits provides that "[t]he Chief of Police may in his discretion revoke any such
license." Id.
II.
Rule 56(a) of the Federal Rules of Civil Procedure provides that "[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this
standard, "the mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986). The
moving party bears the burden of proof regarding the absence of any genuine issues of material
fact. Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (citing Rodriguez v. City of
New York, 72 F.3d 1051, 1060–61 (2d Cir. 1995)). Finally, summary judgment is only proper

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where no reasonable inference could be drawn in favor of the nonmoving party. Vivenzio, 611
F.3d at 106 (citing Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000)) ("It is not the
province of the court itself to decide what inferences should be drawn.").
III.
The Plaintiff brought suit pursuant to 42 U.S.C. § 1983 to vindicate alleged Fourth and
Fourteenth Amendment violations. Section 1983 does not itself confer substantive rights on a
plaintiff, but is instead the means by which an injured party may seek vindication. Graham v.
Connor, 490 U.S. 386, 393–94 (1989). It provides:
Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges or immunities secured by the Constitution and laws, shall
be liable to the party injured in action at law, suit in equity, or other proper
proceeding for redress . . .
42 U.S.C. § 1983. A plaintiff must establish that "a person acting under color of state law deprived
him of a federal right" to succeed on a § 1983 claim. Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999).
i.

Fourth Amendment
Plaintiff claims that Defendants Mickens and Carter violated his right to be free from

warrantless and unreasonable searches and seizures under the Fourth Amendment. Plaintiff asserts
that "[a]t no time did the defendants Mickens and Carter have, or seek, a search warrant authorizing
them to search the plaintiff's business or premises, although no exigent circumstances existed to
justify or excuse their failure to do so." Doc. 1, ¶ 9. Defendants, on the other hand, contend that no
Fourth Amendment violation occurred, even if the Court were to infer that the address of Plaintiff's
property was 263 Central Avenue, instead of what was listed on the warrant, 261 Central Avenue.
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The Fourth Amendment protects "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures" without probable cause.
U.S. CONST. Amend. IV. The search and seizure provisions of the Fourth Amendment are
incorporated against the states through the Fourteenth Amendment. See Tenenbaum v. Williams, 193
F.3d 581, 587 (2d Cir. 1999). Furthermore, the Fourth Amendment includes a requirement that the
warrant "particularly describ[e] the place to be searched, and the persons or things to be seized." Id.
This particularity requirement stems from the concern of the Founding Fathers towards the insidious
and oppressive nature of general warrants. Stanford v. State of Texas, 379 U.S. 476, 481 (1965)
("Vivid in the memory of the newly independent Americans were those general warrants known as
writs of assistance under which officers of the Crown had so bedeviled the colonists."). The inquiry
the court must engage in is "whether the warrant was sufficiently particularized on its face to
provide the necessary guidelines for the search by executing officers." United States v. Zemlyansky,
945 F.Supp.2d 438, 450 (S.D.N.Y. 2013) (quoting United States v. Hernandez, 2010 WL 26544, at
*7 (S.D.N.Y. Jan. 6, 2010)). The warrant must be sufficiently particularized to allow the officer
executing the search warrant to "with reasonable effort ascertain and identify the place intended."
Steele v. United States, 267 U.S. 498, 503 (1925).
"Courts . . . have rejected Fourth Amendment challenges to warrants that contain partial
misdescriptions of the place to be searched so long as the officer executing the warrant could
'ascertain and identify the target of the search with no reasonable probability of searching another
premises in error.'" Velardi v. Walsh, 40 F.3d 569, 576 (2d Cir. 1994) (quoting United States v.
Valentine, 984 F.2d 906, 909 (8th Cir. 1993)). Furthermore, "[w]arrants have been upheld despite
'technical errors,' such as an incorrect street address, when the possibility of actual error is

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eliminated by other information." Velardi, 40 F.3d at 576. Other information includes "a detailed
physical description in the warrant itself, supplemental information from an appended affidavit, or
knowledge of the executing agent derived from personal surveillance of the location to be searched."
Id; see also United States v. Lee Fang, 1993 WL 51100, at *3 (S.D.N.Y. Feb. 24, 1993) (finding
search warrant valid despite a typographical error in the address).
In this case, even assuming that the Plaintiff's business address was 263 Central Avenue,
there is no Fourth Amendment violation. First, as to the scope of the search, it is clear that the judge
intended that the officers tsearch the barbershop in the two storefront complex. The warrant
described the storefront as a barbershop and as one of two stores on the first floor of the commercial
and residential complex at 261 Central Avenue. The warrant went on to say that "Who's Next" was
clearly written on the front window of the store. The affidavit and application for the Search and
Seizure Warrant specifically mentions the officers observing controlled buys from the barbershop
and mentions Sean Youngs as the target of their investigation. Unlike the defendant challenging the
search warrant in United States v. Voustianiouk, 685 F.3d 206, 211 (2d Cir. 2011), the name of the
Plaintiff in this case was noted specifically as the target in the warrant application. It was his
business that was the target, so whether or not the officer's had the correct street address, they did
not exceed the scope of what the judge intended them to search.
Second, the search warrant was sufficiently particularized to avoid the concern that "the
description in the warrant of the place to be searched is so vague that it fails reasonably to alert
executing officers to the limits of their search authority." United States v. Berchansky, 958
F.Supp.2d 354, 371 (2d Cir. 2013) (citing United States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011)).
Under Voustianiouk, 685 F.3d at 212, the Second Circuit established two factors for analyzing

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whether a warrant containing an error satisfies the particularity prong of the Fourth Amendment: (i)
whether the description is adequate "to enable the executing officer to locate and identify the
premises with reasonable effort," and (ii) "whether there is any reasonable probability that another
premise might be mistakenly searched." Here, both factors are satisfied. The warrant was clear that
the place to be searched was the barbershop. It is also apparent from the record that there was only
one barbershop at the location. Furthermore, there was little risk that another premises would be
searched. Despite the difference in the addresses, the store front was accurately described. The
officers were not likely to search other premises given the detailed nature of the description. Even if,
as the Plaintiff claims, his address was 263 Central Avenue, rather than 261 Central Avenue, as
listed on the warrant, no Fourth Amendment violation occurred. There is no genuine dispute of
material fact that would allow a reasonable jury to find that a Fourth Amendment violation had
occurred. For these reasons, the Defendants are entitled to summary judgment on the Plaintiff's
Fourth Amendment claims.
ii.

Procedural Due Process
Plaintiff asserts that, by summarily revoking his vendor's permit for his hot dog stand, the

City of Norwich has deprived him of due process under the Fourteenth Amendment. U.S. CONST.
Amend. XIV. The Defendants, on the other hand, claim that the Plaintiff did not have a
constitutionally cognizable property interest in the vendor's permit, and as such, he was not entitled
to the protections of the due process clause. The Defendants emphasize that because revocation lies
explicitly within the total discretion of the Chief of Police, no constitutionally cognizable property
interest exists.
The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty,

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or property, without due process of law." U.S. CONST. Amend. XIV. The requirements of procedural
due process apply solely to those deprivations of liberty and property interests protected by the
Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972).
"When protected interests are implicated, the right to some kind of prior hearing is paramount." Id.
at 569–70. However, the "range of interests protected by procedural due process is not infinite." Id.
at 570.
The first inquiry a court must make into the due process question is whether a property
interest exists. Kraebel v. New York City Department of Housing Preservation and Development,
959 F.2d 395, 404 (2d Cir. 1992). "Property interests . . . are created and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state law."
Roth, 408 U.S. at 577. A person must be entitled to a benefit before it becomes a property interest.
Id. The inquiry into whether there is a constitutionally cognizable property interest involves two
questions: (i) "whether some source of law other than the Constitution, such as a state or federal
statute, confers a property right on the plaintiff" and (ii) "[o]nce such a property right is found, [the
question becomes] whether that property right constitutes a property interest for purposes of the
Fourteenth Amendment." O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005) (quoting Town of
Castle Rock v. Gonzales, 545 U.S. 748 (2005)).
In defining a property interest, the Supreme Court in Board of Regents of State Colleges v.
Roth, 408 U.S. at 577, noted that "[t]o have a property interest in a benefit, a person clearly must
have more than an abstract need or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it." "[I]f state law makes the pertinent
official action discretionary, one's interest in a favorable decision does not rise to the level of a

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property right entitled to due process protection." RR Village Ass'n, Inc. v. Denver Sewer Corp., 826
F.2d 1197, 1201 (2d Cir. 1987) (citing Schwartz v. Mayor's Committee on the Judiciary of the City
of New York, 816 F.2d 54, 56 (2d Cir. 1987); Sullivan v. Town of Salem, 805 F.2d 81, 84 (2d Cir.
1986)).
The provisions under which the Plaintiff received his vendor's license provide in relevant
part: "Town ordinances re vending, hawking or peddling. . . . Any town may make reasonable
ordinances with reference to the vending or hawking upon its public streets." C.G.S. 21-37.
Futhermore, the City of Norwich Ordinances provide: "The Chief of Police may in his discretion
revoke any such license." City of Norwich Ordinance §15-5. Under Second Circuit law, there is no
constitutionally cognizable property interest "where the licensor has broad discretion to revoke the
license;" however, there is a property interest where "discretion was carefully constrained." Spinelli
v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009). Because the Chief of Police has unfettered
discretion to revoke the vendor's permits in the City of Norwich, there can be no property interest.
Because there is no property interest, no process is due to the Plaintiff. The Defendants are entitled
to summary judgment on the due process claims made by Plaintiff.
iii.

Conspiracy
Plaintiff also asserts two separate § 1983 conspiracy claims. Firstly, he asserts that

Detectives Carter and Mickens conspired to deprive Plaintiff of his Fourth Amendment rights.
Secondly, he asserts that Chief Fusaro and Lieutenant Molis conspired to deprive Plaintiff of his
Fourteenth Amendment due process rights. Defendants argue that "he cannot make out the requisite
elements of such a claim based upon any provable conduct that may be imputed to any of the
defendants." Doc. 23-1, p. 37. In order to prove a § 1983 conspiracy, Plaintiff must prove the "sine

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qua non of a § 1983 claim: a violation of the federal right." Singer v. Fulton County Sheriff, 63 F.3d
110, 119 (2d Cir. 1995). This Court has already held that no reasonable jury could find either a
Fourth Amendment or Fourteenth Amendment constitutional violation. See supra parts III(i) and (ii).
Thus, no § 1983 conspiracy can exist, and Defendants are entitled to summary judgment.
iv.

Qualified Immunity
Defendants assert, as a defense to both of Plaintiff's Fourth Amendment and Fourteenth

Amendment claims, that they are shielded from the lawsuit by the doctrine of qualified immunity.
"Qualified immunity shields government officials whose conduct 'does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.'"
Martel v. Town of South Windsor, 562 F.Supp.2d 353, 359 (D. Conn. 2008) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The threshold question is whether or not the Plaintiff's
constitutional rights have been violated. Martel, 562 F.Supp.2d at 359. Then, the next inquiry the
Court must make is whether that constitutional right was sufficiently clear that an objectively
reasonable officer would understand that his actions would violate that right. Id. (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001)). In other words, "[s]ummary judgment is appropriate when a trier of
fact would find that reasonable officers could disagree." Id. (citing Lennon v. Miller, 66 F.3d 416,
421 (2d Cir. 1995)).
Here, for the reasons stated above, the Court finds that no constitutional rights have been
violated. However, assuming contrary to that conclusion that Plaintiff's Fourth and Fourteenth
Amendment Rights had been violated, the Defendants would be entitled to qualified immunity.
In Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994), the Second Circuit had occasion to consider
a similar Fourth Amendment case. In Velardi, the police officers obtained a warrant allowing them

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to search Velardi's residence, which was listed as the fourth house on a particular street. 40 F.3d at
576. After arriving at the scene, the police officers discovered that Velardi resided at the third house,
and searched that one instead. The Second Circuit held that "[w]e do not think that the case law
clearly established that police officers executing a warrant cannot rely on the sort of information
gathered at the scene in this case to reinterpret the warrant's identification of the premises to be
searched." The current state of the law reflects continued ambiguity in this area of law. It is still not,
nor was it in 2010, clearly established that police officers could not rely on a warrant with a
mistaken address. The cases consider such factors as whether the officers seeking the warrant
included the target's name and how likely an officer was to search the wrong location based on the
description in the warrant. See supra Part III(I). The police officers here acted with objective
reasonableness, and had they conducted an inquiry into the standards regarding particularity, they
would have struggled to descry the state of the law. The nuances of the body of law comprising the
particularity requirements of contain "considerable ambiguity." See Velardi, 40 F.3d at 576. Thus,
the police officers would be entitled to qualified immunity on the Fourth Amendment claims.
Furthermore, the Defendants are entitled to qualified immunity for the Fourteenth
Amendment due process claim brought by Plaintiff. In Ace Partners, LLC v. Town of East Hartford,
2011 WL 4572109 (D. Conn. Sep. 30, 2011), a police officer refused to renew a precious metals
license. The court noted that "[a] right is 'clearly established' only if 'it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.'" Ace Partners, 2011
WL 4572109, at *6 (quoting Saucier v. Katz, 533 U.S. 194 (2001)). The court concluded that it
would not have been clear to a reasonable officer that refusing the metals license without a hearing
would violate due process because the officer was granted "unfettered discretion." Id. Likewise, the

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officers here are entitled to qualified immunity for the revocation of the vendor's license. The City
of Norwich Ordinances provide: "The Chief of Police may in his discretion revoke any such
license." City of Norwich Ordinance §15-5. The law regarding procedural due process does not
clearly make unlawful the denial of a benefit when the denial is statutorily within that officers
discretion. Thus, Lieutenant Molis and Chief Fusaro are entitled to qualified immunity on the
question of Plaintiff's due process claim.
IV.
For the foregoing reasons, the motion is decided as follows:
Defendants' [23] Motion for Summary Judgment is GRANTED. The Clerk is directed to
dismiss the Complaint as to these Defendants with prejudice, and to close the file.

It is SO ORDERED.
Dated: New Haven, Connecticut
March 31, 2016

/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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