Purnell v. Scarglato et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that the Court adopts the R&R in its entirety. Accordingly, defendant Martinez's motion to dismiss (ECF No. 22) is granted in its entirety, and plaintiffs claims against defendant M artinez are dismissed. Plaintiff is denied leave to re-plead because the defects in his amended complaint are substantive and any attempt to replead would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The Court certifies pursuan t 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 the purpose of any appeal.. Ordered by Judge Joseph F. Bianco on 2/27/2017. (Bollbach, Jean)cm by chambers to pro se by fcm on 2/28/17

F 1LED

IN CLERK•s OFFICE
U.S. DISTRICT COURT E.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

---------------------------------------------------------------){

KEVIN PURNELL,

FEB 27 2017

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LONG ISLAND OFFICE
Plaintiff,
ORDER
15-CV-4869 (JFB)(ARL)

-againstLORDES MARTINEZ and FRANCO
FRANTELLIZZI,
Defendants.

---------------------------------------------------------------){

JOSEPH F. BIANCO, District Judge:

By Order dated January 4, 2017 (the "Order," ECF No. 34), the Court adopted a Report
and Recommendation ("R&R," ECF No. 32) from Magistrate Judge Lindsay recommending that
the Court grant defendant parole officer Lordes Martinez's motion to dismiss (ECF No. 22) prose
plaintiff Kevin Purnell's ("plaintiff') claims against defendant Martinez. The R&R instructed
that any objections to the R&R be submitted within fourteen (14) days of service of the R&R. By
letter dated January 23, 2017, plaintiff informed the Court that he had not received a copy ofthe
R&R (ECF No. 35), and defendant's letter dated January 25, 2017 explained that defendant
mistakenly mailed a copy of the R&R to plaintiff at the incorrect address (ECF No. 36).
Accordingly, the Court vacated the Order and provided plaintiff with an opportunity to submit
objections to the R&R (ECF No. 38), which plaintiff timely filed on February 21, 2017 (ECF No.
42). The Court has reviewed plaintiffs objections under a de novo standard of review, and for
the reasons set forth below, the Court adopts the thorough and well-reasoned R&R in its entirety
and grants defendant Martinez's motion to dismiss.

I. STANDARD OF REVIEW
A district judge may accept, reject, or modify, in whole or in part, the findings and

recommendations of the Magistrate Judge.

See DeLuca v. Lord, 858 F. Supp. 1330, 1345

(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372,374 (S.D.N.Y. 1988). As to those portions
of a report to which no "specific written objections" are made, the Court may accept the findings
contained therein, as long as the factual and legal bases supporting the findings are not clearly
erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985). When a party
submits a timely objection to a report and recommendation, the district judge will review the parts
of the report and recommendation to which the party objected under a de novo standard of review.

See 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination ofthose
portions of the report or specified proposed findings or recommendations to which objection is
made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to. ·The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.").

II. ANALYSIS
In her R&R, Magistrate Judge Lindsay recommended that plaintiffs Fourth Amendment

search-and-seizure claim under 42 U.S.C. § 1983 against defendant Martinez be dismissed as
barred by qualified immunity. The search in question was conducted while plaintiff was on parole
following a criminal conviction and prison sentence in New York State, and "[u]nder New York
State law, as announced by the New York Court of Appeals in People v. Huntley, the determination
as to whether a warrantless parole search 'was unreasonable and thus prohibited by constitutional
proscription must turn on whether the conduct of the parole officer was rationally and reasonably
related to the performance of the parole officer's duty.'" United States v. Barner, 666 F.3d 79,
84 (2d Cir. 2012) (quoting People v. Huntley, 43 N.Y.2d 175, 181 (1977)). This "New York rule

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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)
(citation omitted).
Here, based upon the allegations in the amended complaint, Magistrate Judge Lindsay held
that "it was objectively reasonable for Parole Officer Martinez to believe that a warrantless search
was appropriate" based on "the government's substantial interest in supervising parolees";
plaintiffs consent to warrantless searches of his "person, residence and property" as a condition
of his parole; and defendant Martinez's duty as a parole Officer '"to investigate whether a parolee
is violating the conditions of his parole."' (R&R at 8 (quoting United States v. Barner, 666 F.3d
79, 85 (2d Cir. 2012).) Finally, Magistrate Judge Lindsay determined that the fact that defendant
Martinez was accompanied by police officers during the search at issue, which led to the seizure
of illegal drugs and related criminal charges against plaintiff, did not transform defendant Martinez
into a police agent because the "Second Circuit ... has explicitly rejected this 'stalking horse'
argument, i.e., where a parolee 'contends that his parole officer was used as a "stalking horse" to
conduct a home visit so that law enforcement officers could evade the Fourth Amendment's usual
warrant and probable cause requirements for police searches and seizures.'"

(R&R at 8-9

(quoting United States v. Speed, 272 F. App'x 88, 91 (2d Cir. 2008).) "Thus, it is clear in the
Second Circuit, where a police officer accompanies a parole officer in performing a parole search,
a warrant is not required, so long as the search is rationally and reasonably related to the parole
officer's duties." Rodriguez v. Rodriguez, No. 10 CIV. 00891 LGS, 2013 WL 4779639, at *6
(S.D.N.Y. July 8, 2013); see also United States v. Reyes, 283 F.3d 446,463 (2d Cir. 2002) ("[T]he
objectives and duties of probation officers and law enforcement personnel are unavoidably parallel

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and are frequently intertwined. Indeed, it is difficult to imagine a situation where a probatjon
officer conducting a home visit in conjunction with law enforcement officers, based on a tip that
the probation officer has no reason to believe conveys intentionally false information about a
supervisee's illegal activities." (footnote omitted)).

In his objections to the R&R, plaintiff raises the same arguments he asserted in his
opposition to defendant Martine's motion to dismiss, namely that ( 1) defendant Martinez acted
outside the scope of her duties as a parole officer because she conducted the warrantless search at
issue "solely for the purpose of obtaining evidence of a crime"; (2) defendant Martinez was acting
as an agent of the police because she was accompanied d~ng the search by, inter alia, defendant
Detective Franco Frantellizzi; and (3) Defendant Martinez conducted the search on the basis of a
prior tip by defendant.Frantellizzi that plaintiff was engaged in drug activity.
Plaintiff's objections are unavailing under Reyes, 283 F.3d at 446, which is squarely on
point. There, a federal Drug Enforcement Agency ("DEA") agent contacted the defendant's
probation officer to inform him that the defendant might be involved in drug distribution, and the
probation department coordinated a visit of defendant's home with the DEA and New York State
law enforcement officers, whereupon a warrantless search discovered illegal drugs. !d. at 45153. The Second Circuit held that this search was not unconstitutional because of the defendant's·
diminished expectations of privacy in his home as a condition of his probation-which meant that
"he knew he was subject to home visits by a probation officer at any time as a condition of his
supervised release." !d. at 460. The Second Circuit also rejected the defendant's argument that
"the probation officers' conduct in this case [was] prohibited by the so-called 'stalking horse'
theory, pursuant to which a probation officer may not use his authority to conduct a home visit to
help law enforcement officers evade the Fourth Amendment's usual warrant and probable cause

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requirements for police searches and seizures." !d. at 462 (footnote omitted). The Court held,

inter alia, that while the search was conducted ·as a coordinated effort by the DEA and the
probation department, "the law permits such cooperation as long as the probation officers are
pursuing legitimate probation-related objectives." Jd. at 464.
Accordingly, having conducted a de novo review, this Court agrees with Magistrate Judge
Linds~y

that under Reyes and "the circumstances alleged in the pleadings, it was objectively

reasonable for Parole Officer Martinez to believe that she had authority to conduct the search."
(R&Rat 9.)

III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the Court adopts the R&R in
its entirety. Accordingly, defendant Martinez's motion to dismiss (ECF No. 22) is granted in its
entirety, and plaintiffs claims against defendant Martinez are dismissed. Plaintiff is denied leave
to re-plead because the defects in his amended complaint are substantive and any attempt toreplead would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). 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 the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO~D­

~~ b~'<'.<S>
Joscffili F. Bianco
Un\~~d States District Judge
Dated:

'Jl,

February
2017
Central Islip, New York

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