Wallace v. New York State Department of Corrections and Community Supervision et al

Filing 81

ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that reasons, plaintiff's and defts' objections are overruled and the Report is adopted in its entirety. Summary judgment motions on plaintiffs excessive force claim are due on or before February 27, 2015, any opposition is due on or before March 13, 2015 and any reply is due on or before March 20, 2015. The pretrial conference scheduled before the undersigned on January 29, 2015 is hereby adjourned to September 10, 2015 at 11:15 am. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 1/23/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------)(
LYNDA M. FREGO,
Plaintiff,

ORDER
11-CV-5462(SJF)(SIL)

-againstPAROLE OFFICER F. KELSICK and
SENIOR PAROLE OFFICER
SENZAMICI,

Defendants.

----------------------------------------------------------)(

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

*

JAN 23 2015

*

LONG ISLAND OFFICE

FEUERSTEIN, J.

Prose Plaintiff Lynda M. Frego ("Frego" or "plaintiff') commenced this action against
defendants Parole Officer F. Kelsick and Senior Parole Officer Senzamici (collectively,
"defendants"), under 42 U.S.C. § 1983 ("Section 1983") alleging that defendants "conducted an
unwarranted search of [her] residence" and that "she was physically restrained under excessive
force." [Case No. 12-civ-1028, Docket Entry No. I (the "Complaint" or "Compl.") 'I[ IV]. By
order dated June II, 2012, the Court dismissed Frego's claims against defendant New York State
Department of Corrections and Community Supervision and consolidated Frego's case with a
suit by Frego's husband, Troy Wallace, arising from the same incident, under docket number II5462. [Docket Entry No. 18].
On June 7, 2012 and July 26, 2012, Defendants moved to dismiss the Frego and the
Wallace complaints. (Docket Entry Nos. 16, 27]. On December 21,2012, this Court adopted the
Report and Recommendation issued by Magistrate Judge William D. Wall [Docket Entry No. 34
(the "Wall Report")] in its entirety, granting defendants' motion to dismiss the Wallace
complaint in its entirety, denying leave to replead, and granting defendants' motion to dismiss

the Frega complaint with prejudice except with respect to Frega's Fourth Amendment claims.
[Docket Entry No. 35 (the "December 21,2012 Order")]. On April I I, 2014, defendants filed a
motion for summary judgment on plaintiffs Fourth Amendment claim, which plaintiff opposed.
[Docket Entry No. 65].
Now before the Court is the Report and Recommendation of Magistrate Judge Steven I.
Locke dated November 10,2014, that defendants' motion for summary judgment be granted as
to plaintiffs Fourth Amendment unlawful search claim and denied as to plaintiffs excessive
force claim. [Docket Entry No. 76 (the "Report")]. 1 Defendants filed objections to Report on
November I I, 2014 [Docket Entry No. 77 (Def. Obj.")], and plaintiff filed objections to the
Report on December 8, 2014 [Docket Entry No. 80 ("Pl. Obj.")]. The Court has fully considered
the submissions made by defendants and plaintiff, and plaintiffs prose status. 2 For the reasons
that follow, the Court adopts the Report in its entirety.

I.

Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct

proceedings of dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P.
72(b). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b).
However, "when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error." Frankel v. City of

The facts underlying this action are set forth in the Report and are hereby incorporated by
reference. See Report, at 1-5.
2

Generally, a court should construe submissions by prose plaintiffs liberally and "interpret them
to raise the strongest arguments that they suggest." Scott v. Rock, 2013 WL 360398 (E.D.N.Y. Jan. 30,
2013) (quoting Pabon v. Wright, 459 F.3d 241,248 (2d Cir. 2006)).

2

N.Y., Nos. 06-civ-5450, 07-civ-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009); see also

Butto v. Col/ecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y.2013) ("In a case where a party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error." (quotations and citation omitted)).
The Court is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate
judge on a dispositive matter to which no timely objection has been made, the district judge need
only be satisfied that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b);

Johnson v. Goord, 487 F. Supp. 2d 377,379 (S.D.N.Y. 2007), aff'd, 305 F. App'x 815 (2d Cir.
Jan. 9, 2009); Baptichon v. Nev. State Bank, 304 F. Supp. 2d 451,453 (E.D.N.Y. 2004), aff'd,
125 F. App'x 374 (2d Cir. Apr. 13, 2005). Whether or not proper objections have been filed, the
district judge may, after review, accept, reject, or modifY any of the magistrate judge's findings
or recommendations. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b).
II.

Discussion
A.

Plaintiffs Objections to the Report

Plaintiff objects to the Report's findings that: (1) "defendants' search of plaintiffs home
was justified under the circumstances and therefore did not violate Plaintiffs constitutional
rights;" and (2) "defendants are entitled to qualified immunity." Pl. Obj., at I. Plaintiff's first
objection is misplaced given that Judge Locke specifically stated he was "not reach[ing] a
determination on [the] issue" of "whether under these circumstances Defendants had sufficient
basis to justify a warrantless search" given that the Report recommended "summary judgment be
granted with respect to Plaintiff's unreasonable search claim on qualified immunity grounds."

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Report, at 11. Plaintiffs second objection to the Report claims that defendants are not entitled to
qualified immunity because "[t]heir conduct has seriously and clearly violated the basic tenets of
Plaintiff's constitutional rights (to be free from unreasonable search and seizure) of which a
reasonable person would have known" and because "defendants knew that they were not
complying with a law because as the parole contract shows, Mr. Wallace's residence was not the
residence searched unlawfully." Pl. Obj., at 5. The Court, upon de novo review, finds that
defendants are entitled to qualified immunity because it was objectively reasonable for them to
believe that a warrantless search of plaintiff's home was lawful. 3
"Under the doctrine of qualified immunity, a government official performing
discretionary functions is shielded from liability for civil damages if his conduct did not violate
clearly established rights or if it would have been objectively reasonable for the official to
believe his conduct did not violate plaintiffs rights." Reuland v. Hynes, 460 F.3d 409, 419 (2d
Cir. 2006). "The relevant question .. .is ... whether a reasonable officer could have believed [the]
warrantless search to be lawful, in light of clearly established law and the information the
searching officers possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97
L.Ed.2d 523 (1987); see also Castro v. United States, 34 F.3d 106, 112 (2d Cir. 1994) ("Officials
are entitled to qualified immunity when their decision was reasonable, even if mistaken."
(emphasis in original, internal citations omitted)); accord Butz v. Economou, 438 U.S. 478,507,
98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (stating that federal officials are shielded by qualified

3

While it is not necessary to resolve the parties' dispute as to whether defendants were personally
involved in the search, in any event, plaintiff herself testified that she "can't be sure" whether Officer
Kelsick or Officer Senzamici searched her home. [Docket Entry No. 65-7 (Declaration of Toni E. Logue,
Ex. I ("Frega Dep."), at 80-81)].

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immunity from mere mistakes in judgment regardless of whether the mistake is one of fact or
law).
"Under New York law, the issue of whether a warrantless parole search is 'unreasonable
and thus prohibitt:d by constitutional proscription ... turn[s] on whether the conduct of the parole
officer was rationally and reasonably related to the performance of the parole officer's duty."'
Rivera v. Madan, No. 10-civ-4136, 2013 WL 4860116, at *5 (S.D.N.Y. Sept. 12, 2013) (quoting
People v. Huntley, 43 N.Y.2d 175, 181,401 N.Y.S.2d 31,371 N.E.2d 794 (1977)). The Second
Circuit has held that this "New York rule [that a warrantless parole search is permissible so long
as it is reasonably related to the parole officer's duties] is coextensive with the requirements of
the Fourth Amendment...because the doctrine of"special needs," permits those searches that are
reasonably related to the special needs animated by management of a parole system." United
States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000) (internal citations omitted). As the
Second Circuit has repeatedly held, a parole officer's duties include "investigat[ing] whether a
parolee is violating the conditions of his parole." United States v. Barner, 666 F.3d 79, 85 (2d
Cir. 2012) (citing United States v. Reyes, 283 F.3d 446,459 (2d Cir. 2002)). Therefore, "so long
as the conduct of the parole officer was rationally and reasonably related to the performance of
the parole officer's duty, a warrantless search of the residence of a parolee is generally
reasonable under the Fourth Amendment" (United States v. Perkins, No. 12-cr-6006L, 2013 WL
6145753, at *5 (W.D.N.Y. Nov. 21, 2013) (internal citations omitted)), even after the parolee is
placed under arrest for the parole violation. See Barner, 666 F.3d at 85-86 (concluding that "the
parole officers having placed [parolee] under arrest for a parole violation, earlier that same day,
did not render the search [of his residence] unreasonable" qecause "[a] parole officer's duty to

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investigate violations of parole does not vanish the moment a defendant is taken into custody for
a violation.").
A review of the information possessed by defendants at the time of the purported search
demonstrates that it was objectively reasonable for them to believe that the search of plaintiffs
home was lawful because they believed it was Mr. Wallace's residence and that a minor was
present in the home. As part of the conditions of his release, Mr. Wallace permitted "the search
of inspection of[his] person, residence and property." [Docket Entry No. 65-4 (Affidavit of
Vincent Senzamici ("Sen. Aff.")); Docket Entry No. 65-5, Sen. Aff., Ex. A)]. Given Mr.
Wallace's failure to report to his assigned housing upon release from custody (Sen. Aff., Exs. DF.), defendants' surveillance of plaintiffs residence and conversation with plaintiffs neighbor
who informed them that Mr. Wallace came and went from plaintiffs residence, parole officers'
observation of male clothing in plaintiff's home through the windows and the fact that Mr.
Wallace was apprehended and arrested at plaintiff's home, it was reasonable for defendants to
believe that plaintiff's home was Mr. Wallace's residence. Pl. Rule 56.1 Stmt. ~~ 11-13, 25-26,
29-30; Sen. Aff. ~~ 8-9, 15-16, Kel. Aff. ~~ 6-7, 13-15. 4 See United States v. Viserto, :'191 F.
App'x 932, 934 (2d Cir. 2010) (holding that, among other things, an informant's tip to officers
that recently absconded parolee was residing at his wife's house and the fact that parolee had

4

Even if defendants had been mistaken in their belief that plaintiffs home was Mr. Wallace's
residence, which, according to plaintiff's deposition, they were not (see Frego Dep. 38-39 (testifYing that
at the time of the search, Mr. Wallace had been living with her for approximately three days)), because
their belief was reasonable, they would still be entitled to qualified immunity. See Moore v. Vega, 371
F.3d 110, 117 (2d Cir. 2004) ("Defendants believed they were entering the residence of an absconded
parolee. If such belief was reasonable, qualified immunity protects them from liability, even if that belief
was mistaken.").

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abandoned his last known residence was "sufficient to support a reasonable belief that, at the
time of the [search], (parolee] was again residing with his wife").
Additionally, it is undisputed that plaintiff told defendants, prior to the search, "that [her]
daughter was downstairs." Frego Dep., at 76; Sem. Aff. ~ 14; Kel. Aff. ~ 12. Therefore, it was
reasonable for the officers to believe a minor was present in plaintiff's home, in violation of Mr.
Wallace's conditions of release which permitted him to "only have contact with any minor
children in common with Linda Fregoe Wallace with approval and supervision of a Family Court
Order or with the permission of the P.O." and to "have no contact with any person under the age
of eighteen, without the written permission of the P.O." Sen. Aff., Ex. A. Defendant
Senzamici's "order to clear the residence to see if anyone else was inside ... which took no longer
than two minutes" (Pl. Rule 56. I Stmt.

~

31; Sen. Aff.

~

17) and his "belie[f] that they had

probable cause to enter the residence to do a visual inspection to make sure the daughter was safe
and to confirm that there were no other individuals, particularly other minors in the house" (Pl.
Rule 56.1 Stmt.

~

30; Sen. Aff.

~

17), was objectively reasonable and rationally related to

defendants' duties as parole officers in light of the information defendants possessed at the time
and the clearly established caselaw permitting warrantless searches of parolees' residences to
further investigate suspected parole violations. 5

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See United States v. Ramos, 685 F.3d 120, 129 & n.6 (2d Cir. 2012) (parole officers' warrantless
search of parolee's home was consistent with the Fourth Amendment because it was permitted by the
conditions of his parole, and 'Justified by the need to investigate whether [parolee] had committed any
new parole violations"); United States v. Newton, 369 F.3d 659, 666 (2d Cir. 2004) (once parole officers
received information that parolee had a firearm, it "was a reasonable exercise of their parole duty to
search [parole mother's] apartment [where parolee resided] both to detect the possession of the firearm in
violation of [parolee's] parole and to protect [the mother] and her husband"); United States v. Quinones,
457 F. App'x 68, 70 (2d Cir. 2012) (warrantless search of residence defendant shared with his girlfriend
did not violate Fourth Amendment "where the parole officer had reason to suspect not only that [parolee]
was violating the terms of his parole, but also that he was engaged in criminal activity"); Viserto, 391 F.
App'x at 932 (entry into parolee's wife's home solely on the basis of a parole warrant was valid); U.S. v.
Santalucia, 666 F. Supp. 2d 268,272 (N.D.N.Y. 2009) (search of parolee's mother's house when
arresting parolee on a parole warrant was permissible under Fourth Amendment as "rationally and

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Based upon the foregoing, plaintiff's objections are overruled and defendants are entitled
to qualified immunity for the search conducted at plaintiff's home.
B.

Defendants' Objections to the Report

Defendants object to the Report's finding that plaintiff's complaint sets forth a
viable excessive force claim and that "there is a genuine issue of material fact as to whether
Defendants used excessive force under the circumstances." Report, at 14; see also Def. Obj., at
I. Defendants argue that they moved for summary judgment only on plaintiff's improper search
claim because that was plaintiff's only Fourth Amendment claim which survived the December
21,2012 Order, which defendants argue "did not mention any claim of excessive force." Def.
Obj., at 3. The Wall Report, adopted in its entirety by this Court, recommended "that Frego's
Fourth Amendment claim not be dismissed" (Wall Report, at 12), and described plaintiff's
Fourth Amendment claims as claims "that the defendants improperly entered and searched her
home" (id., at 9) and "that she was physically restrained under excessive force." !d., at 10-11.
The Court thus finds that plaintiff has alleged an excessive force claim which survived the
December 21,2012 Order.
Defendants also urge dismissal of plaintiff's excessive force claim because "it was
reasonable for officers to use de minimis force pushing the door open in order to allow them to
conduct the warrantless search" (De f. Obj ., at 6), and because plaintiff "has failed to demonstrate
that she sustained any physical injury as a result of the search of her home on September 16,
2011." !d., at 7. Given the allegations that plaintiff was "physically restrained under excessive

reasonably related to his duty ... to investigate [Defendant's] parole violation"); US. v. White, 622 F.
Supp. 2d 34 (S.D.N.Y. 2008) (parole officer's search of apartment in which parolee was an overnight
guest was "was rationally and reasonably related to [the parole officer's] duties" where an arrest warrant
had been issued for parolee, parolee had absconded, his "presence at the [searched] apartment was in
itself a separate violation of his parole" and parole officer had received information that parolee was in
the apartment and had articulable suspicion that drugs were present in the apartment).

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force" (Compl. ~IV), that defendants "use[d] brute force to push the interior open and shove
[plaintiff] back into the livingroom" [Docket Entry No. 65-10 ("Wallace Aff.") ~ 10], that
plaintiff "suffered physical, mental and emotional pain and suffering which includes but not
limited to ... as yet undetermined injuries" (Compl.
compensation for her "medical bills" (id.

~

~IV),

and the fact that plaintiff seeks

V), defendants' request to dismiss plaintiffs

excessive force claim is denied; however their request to formally move for summary judgment
on that claim (De f. Obj ., at 8) is granted.
Ill.

Conclusion
For the foregoing reasons, plaintiff's and defendants' objections are overruled and the

Report is adopted in its entirety. Summary judgment motions on plaintiffs excessive force
claim are due on or before February 27, 2015, any opposition is due on or before March 13, 2015
and any reply is due on or before March 20, 2015. The pretrial conference scheduled before the
undersigned on January 29, 2015 is hereby adjourned to September I 0, 2015 at II :15 am.
SO ORDERED.

s/ Sandra J. Feuerstein
.I

Sfindra J. Feuerstein
United States District Judge
Dated: January 23, 2015
Central Islip, New York

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