Rivera v. Kelly et al
Filing
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MEMORANDUM DECISION AND ORDER, Defts' motion for summary judgment is granted and the case is dismissed. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Brian M. Cogan on 3/29/2012) c/m with Unpublished Decisions sent to Pltff by chambers. Fwd. for Judgment. (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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f!ROOKLYN Of'hCE
FELIX RIVERA,
MEMORANDUM
DECISION AND ORDER
Plaintiff,
- againstI 1 Civ. 2064 (BMC)
P.O. DONNELL MEYERS, LT. GERALD
PIZZANO, CAPT. JAMES RYAN, DET.
EDWARD ROURKE, DET.PHIL!P
SCARANGELLA, DET. DALE SCHULTZ,
DET.K.EVIN CONCANNON, DET. PENELOPE
SEAMAN, and DET. PHILIP LUCIA,
Defendants.
X
COGAN, District Judge.
On March 15, 2011, plaintiff Felix Rivera brought this prose action under 42 U.S.C. §
1983 alleging that he was falsely arrested and that his horne was searched without a warrant. By
Memorandum Decision and Order dated May 9, 2011, this Court dismissed the only defendants
named by plaintiff at that time: Richard Brown, Ray Kelly, and the Firearms and Narcotics
Squad of the IOOth and JOist Precinct. By Order dated July 6, 2011, this Court directed plaintiff
to identify the individuals whom he believed to be responsible for the alleged deprivation of his
constitutional rights. Fallowing his response, this Court issued a Valentin Order directing
Corporation Counsel to ascertain the names and service addresses of the officers involved in
plaintiffs arrest. The complaint was subsequently amended to add the names of these officers,
and on November 1, 2011, this case was stayed pending resolution of plaintiff's related criminal
prosecution in New York state court.
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On February 18,2012, following the resolution ofplatntl
· · 1 case defendants
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d to move for summary judgment. This
filed a tetter requesting a pre-motion con1erence m or er
Court deemed defendants' letter to be their motion for summary judgment and directed plaintiff
to file his opposition by March 12,2012. Plaintiff filed an opposition to the summary judgment
motion, including a sworn affidavit. For the reasons stated below, defendants' motion for
summary judgment is granted and the case is dismissed.
BACKGROUND
Plaintiffs home was raided and he was arrested on February 4, 2010, for illegal weapons
possession. In his complaint, plaintiff alleged that the raid occurred as a result of an illegal
wiretap on his telephone. He also alleged that he was not shown a search warrant or given any
explanation for the raid. As part of their motion for summary judgment, defendants submitted a
search warrant issued by Justice Robert C. McGann on February 3, 2010, permitting the New
York Police Department to search plaintiffs home for fireanns. Defendants also submitted a
Search Warrant Affidavit, prepared by Police Officer Donnell Myers, which explained that an
eavesdropping warrant issued by Justice McGann in 2007 had allowed Officer Myers to gather
information indicating that plaintiffs home contained illegal handguns. In the affidavit, Officer
Myers recounted telephone conversations wherein plaintiff agreed to fetch a handgun from his
home and relay it to an associate.
Plaintiff has been held in custody ever since the raid. On December 23, 2011, he pled
guilty to Criminal Possession of a Weapon in the Second Degree. In his opposition papers,
plaintiff argues that there was no probable cause for the search warrant to be issued because the
conversations described by Officer Myers in the affidavit were hearsay. Plaintiff also makes
various arguments that do not have a legal basis, such as "the officers stated that they observe us
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k h the officers didn't act if we had
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guns on us at the ttme [?)"
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· 1 ted and that the officers
Plaintiff also alleges that his right to a speedy tna1 as een vto a
who raided his home confiscated cell phones that cost $500.
He alleges that the defendants have
violated his constitutional rights and that he has suffered damage to his mental health.
He seeks
the return of his property and $10 million in damages.
DISCUSSION
Summary judgment should be granted if the materials in the record show that there is "no
.
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genume tssue as to any rna en
fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). When undisputed facts establish a legal defense, summary
·
See, e. o ., Rexall Sundown, Inc. v. Perrigo Co., 651 F. Supp. 2d 9, 31
judgment is appropnate.
.!::..:.C>!(E.D.N.Y. 2009). The Court is mindful of the "special solicitude" that must be afforded an
incarcerated prose plaintiff who faces a summary judgment motion. See Graham v. Lewinski,
848 F.2d 342,344 (2d Cir. 1988). However, proceeding prose does not relieve a litigant from
the usual requirements of summary judgment, and plaintiffs submission of a sworn affidavit
demonstrates that he understood the necessity to come forward with factual support for his
allegations.
Plaintiff does not dispute that he pled guilty to Criminal Possession of a Weapon
following the arrest that he claims was unlawful. A § 1983 plaintiff is barred from asserting a
false arrest claim if the arrest led to a criminal conviction, since success on such a claim "would
necessarily demonstrate the invalidity" of plaintiffs conviction. See Wilkinson v. Dotson, 544
U.S. 74,81-82, 125 S. Ct. 1242 (2005); Heck v. Humphrey, 512 U.S. 477,487, 114 S. Ct. 2364
( 1994 ). This principle also applies when the plaintiff was convicted following a guilty plea. See
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Younger v. City of New York, 480 F. Supp. 2d 723,730 (S.D.N.Y. 2007). Summary judgment
is therefore granted in favor of defendants on the false arrest claim.
It is also undisputed that the weapons uncovered during the allegedly unlawful search
formed the basis of plaintiff's conviction for Criminal Possession of a Weapon. Because
plaintiffs conviction hinged directly on the weapons procured during this allegedly unlawful
search, an award of damages on this claim would necessarily imply the invalidity of his state
court conviction. Plaintiff is therefore precluded from recovering damages on this claim under§
1983, and the claim is dismissed. See Heck, 512 U.S. at 487; Williams v. Ontario County
Sheriffs Dep't, 662 F. Supp. 2d 321, 329 (W.D.N.Y. 2009) (a§ 1983 claim alleging
unconstitutional arrest which would render the evidence procured during arrest inadmissible at
trial necessarily implies the invalidity of plaintiffs conviction).
Even if plaintiff had not pled guilty, summary judgment in defendants' favor would be
warranted on the unlawful search claim. The undisputed evidence shows that the officers had
obtained a search warrant for plaintiff's home and had obtained an eavesdropping warrant to
intercept his phone calls. '"The existence of a valid search warrant necessitates dismissal of
plaintiff's claims of unlawful search ... as a matter oflaw." Askins v. City of New York
No. 09-CV-10315, 2011 WL 1334838, at *2 (S.D.N.Y. Mar. 25, 2011). There is a "presumption
of validity with respect to the affidavit supporting a search warrant," United States v. Mandell,
710 F. Supp. 2d 368, 372 (S.D.N.Y. 2010), and p1aintiffhas presented no facts which call into
question Officer Myers's affidavit in support of the search warrant. Plaintiff simply argues that
the affidavit included hearsay evidence, but "a finding of probable cause may be based in whole
or in part, on hearsay from a reliable informant." Id. at 3 77. Although plaintiff's complaint
alleged that his phone was tapped illegally, he does not contest Officer Myers' sworn testimony
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that the phone was tapped pursuant to a warrant issued in 2007. This warrant is also presumed to
be valid.
Summary judgment is warranted on plaintiffs speedy trial claim because success on this
claim would invalidate his criminal conviction. See Heck, 512 U.S. at 487. This claim is
therefore dismissed.
Finally, plaintiffs request for appointment of an attorney, raised for the first time in his
opposition papers, is denied. There is no right to counsel in civil cases and discretionary
appointment of counsel is not warranted when it is clear that "no substantial claim might be
brought." Wenger v. Canastota Cent. School Dist., 146 F.3d 123, 125 (2d Cir. 1998) (overruled
on other grounds).
CONCLUSION
Defendants' motion for summary judgment is granted and the case is dismissed. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917 (1962).
SO ORDERED.
Dated: Brooklyn, New York
March 29,2012
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