Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

2001 WL 1217224
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Elizabeth GONZALEZ, Michael
Fyvie and Charles Frisbee, Plaintiffs,
v.
THE CITY OF SCHENECTADY, Richard Barnett,
Michael Siler, Thomas Mattice, Michael Glasser,
Marisela Mosher, William Lachanski, and Eric
Hesch, Individually and as Agents, Servants
and/or Employees and Police Officers of the
City of Schenectady and the City of Schenectady
Police Department, and “John Doe” and “Jane
Doe,” Individually and being Unnamed Agents,
Servants and/or Employees and Police Officers
of the City of Schenectady and the City of
Schenectady Police Department, Defendants.
No. 00–CV–0824.

|

Sept. 17, 2001.

in violation of his Fourth Amendment rights pursuant
to an unconstitutional strip search policy. The Court
denied Plaintiff Gonzales' motion and Defendants City of
Schenectady, Thomas Mattice, Michael Glasser, Marisela
Mosher, William Lachanski, and Eric Hesch's cross-motion
for summary judgment pursuant to Rule 56 on that same issue.
Now before the Court is the motion of the Defendant City of
Schenectady seeking partial summary judgment on all claims
brought against the City by Plaintiff Charles Frisbee; and the
motions of Defendant Richard Barnett seeking dismissal of all
claims against Mr. Barnett on the grounds that the Complaint
fails to state a cause of action against Mr. Barnett, or, in the
alternative, granting him summary judgment on the grounds
of qualified immunity. Mr. Barnett also seeks to dismiss the
state law claims against him because of the Plaintiff's failure
to file a timely Notice of Claim and because the Plaintiff
did not interpose the state law claims within the applicable
statute of limitations. In addition, Mr. Barnett moves pursuant
to Rule 21 of the Federal Rules of Civil Procedure to sever
the claims of the three plaintiffs and, further, pursuant to Rule
42(b), to bifurcate Mr. Frisbee's claims against Mr. Barnett
from the claims against the City of Schenectady.

Attorneys and Law Firms
Tobin and Dempf, Albany NY, for Plaintiffs, Kevin A.
Luibrand, Adrienne Kerwin, of counsel.
Dreyer Boyajian LLP, Albany, NY, for Defendant Barnett,
Daniel J. Stewart, of counsel.
Carter Conboy Law Firm, Albany, NY, for Defendant City of
Schenectady, Michael Murphy, of counsel.
Opinion
DECISION & ORDER
MCAVOY, J.
I. BACKGROUND
*1 Plaintiffs commenced the instant action pursuant to
42 U.S.C. § 1983 alleging violations of their Fourth and
Fourteenth Amendment rights arising out of their alleged
arrests, detainments, and strip searches by Defendants.
Plaintiffs also assert various pendent state law causes of
action.
Previously, the Court granted partial summary judgment
in favor of Plaintiff Michael Fyvie as to his claim
against the City of Schenectady that he was strip searched

A. Plaintiff Frisbee's Version of the April 1, 1998 Arrest
Pursuant to Rule 56, the following facts are taken in the light
most favorable to the non-movant, Plaintiff Charles Frisbee.
Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992).
On April 1, 1998, at about 5:55 p.m., Mr. Frisbee was walking
on a public street in the City of Schenectady with his thensix year old daughter and her nine year old friend to go to a
convenience store to buy ice cream. When they were in front
of the store, Frisbee was called over to a City of Schenectady
police vehicle by Defendant–Officers Barnett and Siler who
were seated in the vehicle. Siler asked Frisbee what he was
doing in the area. Frisbee responded that he was going to the
store. Frisbee's daughter and her friend entered the store, and
Siler and Barnett exited the police vehicle. Siler and Barnett
then approached Frisbee on the sidewalk and, according to
Frisbee's deposition, Siler said: “Where is the fucking crack,
where is the fucking crack?” 1 Plaintiff then responded: “I
don't use crack. I don't know nothing about crack.” Plaintiff
asserts that he said he was with his daughter and her friend,
that Siler & Barnett were aware of that fact, that he told the
Officers that he just lived one block away. He also asserts that
at about that point his daughter came running out of the store
yelling: “Don't take my daddy to jail.”

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

*2 Plaintiff asserts that Barnett escorted his daughter away
at which time Plaintiff said to Siler: “Why are you stopping
me. Why are you harassing me.” Plaintiff claims that Siler
responded: “Because you won't fucking tell us where the
fucking crackheads are you fucking asshole.” Barnett then
supposedly asked: “Got anything in your pockets?” to which
Plaintiff responded in the negative. Siler then said: “Spread
‘em.” Plaintiff claims that Siler kicked him in the ankle, threw
him up against the car, and started to frisk him. Plaintiff
claims that “they was checking through my pockets,—keys,
whatever I had in my pockets, looking, looking, looking. And
they found a little marijuana.” Frisbee Dep. p. 69. Plaintiff
asserts Defendants found a small bag of marijuana in the
Plaintiff's front pocket which Plaintiff claims was worth
approximately $5.00.
Frisbee was then handcuffed, transported to the City of
Schenectady Police Station, and stripped searched by Siler
and Barnett. He was kept in a holding cell for a couple of
hours and then was issued an Appearance Ticket and released
without having to post bail. He was charged with the violation
of possession of marijuana, contrary to New York Penal
Law Section 221.05. He asserts that when he received back
his belongings, one hundred ($100.00) dollars in cash was
missing. He also asserts that at no time did he consent to be
searched.
Mr. Frisbee eventually pled guilty to possession of marijuana
and paid the resulting fine.

II DISCUSSION
The Court will first address the motions directed to Mr.
Frisbee's arrest. The Court notes that the City's arguments
are addressed only to the circumstances surrounding Mr.
Frisbee's April 1, 1998 arrest, therefore, the Court treats the
motion as limited to that much of those causes of action
premised in whole or in part on the April 1, 1998 incident. 2
In addition, Mr. Barnett's motion, which is similarly directed
to the April 1, 1998 events, relies on documents beyond the
pleadings. The non-movant responds in kind. Therefore, the
Court treats his motion as a Rule 56 motion.

A. Post–Marijuana discovery detention claim
Plaintiff acknowledges that under Townes v. City of New
York, 176 F.3d 138 (2d Cir.1999), cert. denied, 120 S.Ct.
398 (1999), he may not recover for damages arising from

any detention suffered as a consequence of the discovery of
marijuana on him on April 1, 1998. Therefore, that much
of Defendant Barnett and the City of Schenectady's motions
seeking to dismiss Plaintiff Frisbee's claims for damages for
his detention occurring after the discovery of marijuana on
April 1, 1998 is GRANTED and that portion of Mr. Frisbee's
claims premised on his detention after the marijuana was
discovered on April 1, 1998 are DISMISSED.

B. Pre–Marijuana discovery detention claim
Plaintiff argues, however, that he has a legally viable claim
for damages under a false arrest theory based upon the
defendants' conduct on April 1, 1998 which occurred before
the marijuana was discovered. The threshold issue now before
the Court is whether the facts of this case, when viewed in the
light most favorable to Mr. Frisbee, could lead a reasonable
finder of fact to conclude that the Plaintiff was seized, arrested
or searched in violation of his Fourth Amendment rights
before the marijuana was discovered.

1. The Fourth Amendment
*3 The Fourth Amendment safeguards “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. Amend IV; Atwater v. City of Lago Vista, 121 S.Ct.
1536, 1543 (2001). Whenever an individual is physically or
constructively detained by a police officer in such a manner
that a reasonable person would not feel he is free to leave, that
individual has been “seized” or “arrested” within the meaning
of the Fourth and Fourteenth Amendment. See Terry v. Ohio,
392 U.S. 1 (1968); Tennessee v. Garner, 471 U.S. 1 (1985)
(“Whenever an officer restrains the freedom of a person to
walk away, he has seized the person.”).
A seizure does not occur every time a police officer
approaches a citizen on the street to engage in consensual
discourse. See United States v. Tehrani, 49 F.3d 54, 58
(2d Cir.1995). A police officer may stop and detain an
individual to conduct a reasonable inquiry into whether crime
is afoot without violating the Fourth Amendment if the officer
possesses a reasonable suspicion that criminal activity has
occurred or is about to occur. Terry v. Ohio, 329 U.S. at 20.
This is known as a Terry Stop. However, when an officer
detains an individual for questioning yet lacks this reasonable
suspicion, a seizure under the Fourth Amendment occurs. See
United States v. Glover, 957 F.2d 1004, 1008 (2d Cir.1992).

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

Further, Terry Stops, because they are investigative in nature,
must be brief and “reasonably related in scope to the
circumstances which justified the intervention in the first
place.” See Terry, 329 U.S. at 20. If such a stop last “longer
than is necessary to effectuate the purposes of the stop”
or employs tactics more invasive than necessary under the
circumstances, then the stop becomes a de facto arrest for
which the officer must have probable cause to believe that a
crime has occurred. See Tehrani, 49 F.3d at 58; Oliveira v.
Mayer, 23 F.3d 642, 645–46 (2d Cir.1994), cert. denied, 513
U.S. 1076 (1995).
Probable cause exists when officers “have knowledge
or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.” Posr v. Court
Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir.1999).
The inquiry into the existence of probable cause is an
objective one; the subjective beliefs of the arresting officer
are irrelevant. Martinez v. Simonetti, 202 F.3d 625, 633 (2d
Cir.2000).
During a Terry Stop, officers may conduct a “pat-down frisk”
if the officer “observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he
is dealing may be armed and presently dangerous.” Terry,
392 U.S. at 30. Further, “where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled ... to conduct” this pat
down frisk, which is intended be “a carefully limited search
of outer clothing of such persons in an attempt to discover
weapons....” Terry, 392 U.S. at 30.

2. Plaintiff's claims
*4 In order for the Plaintiff to maintain his Fourth
Amendment or false arrest claims 3 for April 1, 1998, he must
establish:
(1) that the defendants detained him without a reasonable
suspicion before they found the marijuana; or
(2) that the defendants used measures more intrusive then
necessary to conduct a Terry Stop without probable cause
before the marijuana was discovered; or

(3) that the defendants engaged in a defacto arrest of the
Plaintiff without probable cause before the marijuana was
discovered.
To succeed on the first and third theories, Plaintiff must
establish that he was seized within the meaning of the
Fourth Amendment, to succeed on the second theory he
must establish that the level of intrusion used by the officers
was unreasonable under the totality of the circumstances.
The Courts have held that these determinations are generally
questions of fact for a jury to determine. See Oliveira, at 645;
Posr v. Doherty, 944 F.2d 91, 99 (2d Cir.1991) ( “The issue
of precisely when an arrest takes place is a question of fact.”).
Further, each theory requires proof that the officers acted
without the requisite “reasonable suspicion” or “probable
cause.”
Here, when viewing the facts in the light most favorable to
Mr. Frisbee, a reasonable trier of fact could conclude that
the officers detained Mr. Frisbee for questioning without a
reasonable suspicion that a crime had occurred or was about
to occur; that at least Defendant Siler engaged in procedures
more intrusive then necessary under the circumstances; and
that the officers seized and search Mr. Frisbee without
probable cause.
According to Mr. Frisbee's version of the events, on April
1, 1998 he was engaged in wholly innocuous activity when
he was approached by the defendants. A finder of fact could
conclude that the police lacked any suspicion that crime
was afoot when they approached Mr. Frisbee. Further, a
reasonable finder of fact could conclude that during the
questioning, a reasonable person would not feel free to leave
and that the police gained no further heightened suspicion or
probable cause to continue detaining or to search Mr. Frisbee
during their questioning. None of the responses given by the
Plaintiff to Defendants' questions, at least as he recounts them,
would lead a reasonable trier of fact to conclude that the
defendants obtained a reasonable suspicion or probable cause
to believe that a crime had been committed or that plaintiff
was armed.
Still further, based upon Mr. Frisbee's account, a reasonable
finder of fact could conclude that the police lacked a
reasonable basis to frisk Mr. Frisbee or, if they did have
such reasonable suspicion, that the frisk went far beyond
a justifiable pat down of his outer clothing. In addition, a
reasonable trier of fact could conclude that there existed no
reasonable suspicion or probable cause to believe, at that

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

time, that Plaintiff presented a risk of harm to himself or to
others. See Kerman v. City of New York, 2001 WL 845442,
at * 6 (2d Cir. July 26, 2001) (A police officer's decision to
detain or handcuff a person is not unreasonable if the officer
has probable cause to believe that the person presents a risk
of harm to himself or to others.). In fact, Defendants have
not advanced a position on this motion that either Siler or
Barnett believed the Plaintiff was armed at the time, and
it is a reasonable inference that the small bag of marijuana
discovered by the police would not have been discovered in
a simple pat down frisk intended only to discover weapons.
*5 Even assuming, arguendo, that the area in which this
encounter took place was known by the police as having high
drug sales, this fact still does not prevent a reasonable finder
of fact from concluding that the police lacked an articulable
suspicion or probable cause that Plaintiff committed or was
about to commit a crime when they approached and detained
him. To hold to the contrary would eviscerate the protections
of the Fourth Amendment for every person who lives, works,
or travels in an area known for high drug sales.
While Mr. Barnett asserts in his Memorandum of Law that
a reasonable suspicion arose, in part, from the fact that Mr.
Frisbee had a prior marijuana possession conviction, Mr.
Barnett's affidavit is void of any contention that he possessed
this information at the time of the stop. Further, while Frisbee
admits that when the police approached, a number of “kids”
who had gathered in front of the store ran away, he denies he
had any involvement with these individuals. Frisbee Dep., p.
173–174.
Based upon Plaintiff's version of the events, a reasonable
finder of fact could conclude that the facts leading up the
discovery of marijuana constitute an unjustified intrusion
which offends Mr. Frisbee's Fourth Amendment rights and
constitutes a legally cognizable false arrest claim.

3. Interplay with Townes v. City of New York
Townes v. City of New York does not prevent the Plaintiff
from pursuing claims for damages arising from conduct that
occurred before the discovery of the marijuana. The holding
of Townes is specifically limited to the fact that Mr. Townes
had not sought damages for conduct occurring before the
discovery of the weapons in the taxi-cab in which he was
riding. Townes does not hold that a Fourth Amendment claim
for that period of time is a legally nullity. In fact, the dicta in

Townes supports the contrary conclusion. In this regard, the
Townes decision states:
[T]he only actionable violations of
[the Fourth Amendment] are the stop
of the taxicab and the associated
seizure and search of Townes's person,
which alone might at most support
slight or nominal damages. Townes,
however, seeks damages not for those
injuries, but only for the ultimate harm
he suffered by his conviction and
incarceration.
Townes, 176 F.3d at 145 (emphasis added).
The Townes decision goes on to hold that “because Townes
does not seek the only relief to which he may have
been entitled, his complaint should have been dismissed
pursuant to Fed .R.Civ.P. 12(b)(6).” Townes, 176 F.3d at 149
(emphasis added). Accordingly, had Mr. Townes properly
pled and sought damages for a constitutional violation for the
period up to the discovery of weapons and drugs, his claim
would have been actionable albeit of minimal value.
Here, the threshold issue is whether the Plaintiff's claim
is cognizable at law. The Court finds that Plaintiff does
assert cognizable false arrest claims for the period of time
between initial contact with the police and the point where the
marijuana was discovered.

4. Barnett's personal involvement—April 1, 1998
*6 Mr. Barnett argues in his Reply Memorandum of Law
that he did not participate in the search of Mr. Frisbee and
therefore he cannot be held accountable for this conduct. At
first blush, the Amended Complaint appears not to allege
any patently unlawful conduct by Mr. Barnett on April 1,
1998 until after the marijuana was discovered. See Amend.
Compl. ¶¶ 46, 47, & 48. The Amended Complaint asserts that
on April 1, 1998, without probable cause, Barnett and Siler
approached Plaintiff, Amend. Compl. ¶ 46; that Officer Siler
forced Plaintiff against the car and searched Plaintiff, Amend.
Compl. ¶ 47; and that Officer Siler unlawfully detained and
handcuffed Mr. Frisbee, Amend. Compl. ¶ 48. Officer Barnett
is alleged to have participated in the transfer of Frisbee to the
station which, according to the Plaintiff's facts, occurred after
the discovery of marijuana. Amend. Compl. ¶ 48. The mere
allegation that Barnett approached Frisbee without probable

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

cause is legally insufficient to state a claim under the Fourth
Amendment or for state law false arrest.
However, one sentence in the Amended Complaint gives the
Court pause before dismissing the claim against Mr. Barnett.
At paragraph 55, the Amended Complaint uses a plural noun
and asserts that:
The defendant police officers, at the
above times and places, ... without
cause of legal right, did, under color of
Law of the State of New York and/or
the City of Schenectady, stop and frisk
Charles Frisbee without reasonable
suspicion and without consent of
Charles Frisbee....
Amend. Compl. ¶ 55.
While the earlier paragraphs of the Amended Complaint
assert that Defendant Siler conducted the frisk, Plaintiff
testified at his deposition that Mr. Barnett asked Plaintiff
if he had anything in his pockets and then claims, using a
plural pronoun, that: “they was checking through my pockets,
—keys, whatever I had in my pockets, looking, looking,
looking. And they found a little marijuana.” Frisbee Dep. p.
69.
A reasonable finder of fact could conclude that Barnett
participated in both the investigatory detention of Plaintiff
and in the search after Siler started the frisk. Further, based
upon the totality of circumstances, a reasonable finder of
fact could conclude that Barnett's presence and actions when
approaching Plaintiff, participating in the questioning, and
ushering his daughter way from the scene contributed to a
reasonable belief that Mr. Frisbee felt detained and therefore
seized within the meaning of the Fourth Amendment and state
common law.
This creates a sufficient question of material fact which
requires the Court to DENY summary judgment on this
ground.

C. Qualified Immunity
Next, Defendant Barnett moves for summary judgment
asserting that under the holding of Cerrone v. Brown, 246
F.3d 194 (2d Cir.2001), he is entitled to qualified immunity
because the officers had “arguable probable cause” for the
Terry Stop and pat down frisk of Plaintiff. Neither party

contests that in 1998, it was clearly established that a “Terry
Stop and Frisk” required an articulable suspicion, and that an
arrest and search required probable cause. Thus, the issue is
whether Officer Barnett's conduct was objectively reasonable
under the second element of the qualified immunity analysis.
*7 In Cerrone, the Second Circuit held that:
the second element of qualified
immunity analysis permits a court
to grant summary judgment if a
reasonable officer could have believed
his or her actions were lawful. A
court must evaluate the objective
reasonableness of the appellants'
conduct in light of clearly established
law and the information the officers
possessed. Because the test is an
objective one, the officer's subjective
beliefs about the seizure are irrelevant.
A defendant is therefore entitled
to summary judgment on qualified
immunity grounds if a jury, viewing
all facts in the light most favorable
to the plaintiff, could conclude that
officers of reasonable competence
could disagree on the legality of the
defendant's actions.
Cerrone, 246 F.3d at 202 (internal citations and quotations
omitted). “Arguable probable cause exists when a reasonable
police officer in the same circumstances and possessing
the same knowledge as the officer in question could have
reasonably believed that probable cause existed in the light of
well established law.” Cerrone, 246 F.3d at 202–203.
While the holding of Cerrone combined with Mr. Barnett's
version of the facts of April 1, 1998 4 might entitle him to
qualified immunity, one must not lose sight of the fact that
this defense is raised in the context of a Rule 56 motion
during which the Court must view the facts in the light most
favorable to Mr. Frisbee. However, as also instructed by the
Second Circuit in Cerrone:

Even on summary judgment, where all facts must be
viewed in the light most favorable to the non-moving
party, for the purpose of qualified immunity and arguable
probable cause, police officers are entitled to draw

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

reasonable inferences from the facts they possess at the
time of a seizure based upon their own experiences.
Cerrone, 246 F.3d at 203.
Here, when performing the mental exercise of viewing the
facts in the light most favorable to Mr. Frisbee while still
drawing reasonable inferences from the facts Defendant
Barnett possessed at the time of the stop based upon his
own experiences, the Court cannot conclude that reasonable
officers would disagree on whether Defendants Siler and
Barnett had either a reasonable suspicion to detain or frisk
Frisbee or probable cause to arrest or search him—at least
until they found the marijuana on him. Under Mr. Frisbee's
version of events, he was doing nothing suspicious nor
involved in any apparent criminal activity. He was simply
walking down a City street with his daughter and her young
friend. Even drawing the reasonable inference based upon Mr.
Barnett's experience that Plaintiff was in a high drug trade
zone and that he had previously been convicted of marijuana
possession, nothing in Plaintiff's conduct, appearance, or his
answers to the Defendants' questions could form the basis for
an objectively reasonable suspicion that he was involved in
drug activity or any other crime on April 1, 1998.
*8 The 20/20 vision gained through hindsight cannot
be used to alter the events which lead up the marijuana
discovery, at least as recounted by Mr. Frisbee. The divergent
version of the two scenarios creates a material question of
fact which prevents the application of qualified immunity at
this time. Kerman, 2001 WL 845442, at * 8 (“However, the
parties' versions of the facts differ markedly and ‘[s]ummary
judgment on qualified immunity grounds is not appropriate
when there are facts in dispute that are material to a
determination of reasonableness.” ’) (quoting Thomas v.
Roach, 165 F.3d 137, 143 (2d Cir.1999); Ying Jing Gan v.
City of New York, 996 F.2d 522, 532 (2d Cir.1993) (summary
judgment available on immunity issues only if undisputed
facts).

5. April 1, 1998 Strip Search
Next, Plaintiff argues that despite the discovery of marijuana
on his person, the strip search conducted of Mr. Frisbee on
April 1, 1998 could still form the basis of a constitutional
tort. He argues that the amount of marijuana was so small
that he was only charged with a violation level offense, and,
therefore, under the circumstances the strip search conducted
by Siler and Barnett violated his Constitutional rights. Officer
Barnett argues that the initial finding of marijuana supplied
reasonable suspicion that the Plaintiff might have been

secreting other contraband on his person which therefore
justified the strip search.
In the May 31, 2001 Memorandum, Decision & Order issued
in this case, the Court held that the blanket policy of the City
of Schenectady in strip searching all non-felony detainees
was unconstitutional. The Court also held that each asserted
constitutional violation must be addressed independently
to determine whether or not there existed a reasonable
suspicion in each case that the detainee possessed weapons or
contraband. Circumstances which are considered in reaching
this conclusion are the “the crime charged, the particular
circumstances of the arrestee, and/or the circumstances of
the arrest.” Weber v. Dell, 804 F.2d 796 (2d Cir.1986), cert.
denied sub. nom., County of Monroe v. Weber, 483 U.S. 1020
(1987).
Once it is conceded that the detention was constitutionally
justified, the issue then is whether the strip search incident
to that detention was justified under the circumstances. Here,
even drawing all facts and inferences in Mr. Frisbee's favor,
given the discovery of marijuana before the detention a
reasonable fact-finder could only conclude that reasonable
officers could disagree whether a reasonable suspicion
existed that Mr. Frisbee possessed more contraband which the
defendants, for obvious institutional reasons, did not want in
their holding cells.
There is no allegation the strip-search was punitive in nature
or that questions of fact exist as to whether Plaintiff did
possess marijuana. There is an allegation that after the strip
search, $100.00 in cash was missing from Mr. Frisbee's
personal belongings. While the Fourth Amendment's notion
of a reasonable and non-excessive intrusion would probably
be offended by an otherwise-valid strip search that converted
$100.00 of personal belongings, the allegations of the
Amended Complaint assert that it was Officer Siler who
took the $100.00. Amend. Compl. ¶ 50. There is no similar
allegation with regard to Officer Barnett. Nor is there
any allegation that Officer Barnett participated in nor was
deliberately indifferent to Mr. Siler's alleged conduct in this
regard.
*9 Therefore, Mr. Barnett is entitled to qualified immunity
on this portion of Plaintiff's claim. See Saucier v. Katz, 531
U.S. 991 (2001); Cerrone, 246 F.3d 194.

6. Damages

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

In the Reply papers, Defendant Barnett argues that under
Townes v. City of New York, any surviving claim under the
Fourth Amendment should be limited to nominal damages as
a matter of law.
In Townes, the Second Circuit stated that in a § 1983 suit,
the plaintiff must demonstrate proximate causation between
the asserted invasion of privacy and actual damages. Townes
at 146–48. The discovery of criminality prevents recovery
of damages for post-discovery incarceration caused by the
criminality, not the pre-discovery false arrest. Id. However,
Plaintiff concedes this point and instead seeks damages for
the asserted invasion of privacy which occurred before the
marijuana was discovered.
“Damages in an illegal search suit under § 1983 ... must
ordinarily be determined by a jury, not a judge.” Dasher v.
Hughes, 2000 WL 726865, at * 8 (S.D.N.Y. June 6, 2000). A
plaintiff is entitled to develop his case tending to prove actual
injury. Only if, after presenting evidence, he remains “unable
to prove” actual damages does a nominal award become
appropriate. See, e.g., Atkins v. New York City, 143 F.3d 100,
103 (2d Cir.1998) (citing Carey v. Piphus 435 U.S. 247, 248
(1978)). “A judge cannot summarily award merely nominal
damages, thereby usurping the jury's function, unless plaintiff
cannot present any reasonable evidence of injury.” Dasher,
2000 WL 726865, at * 9.
Whether a jury would award compensatory damages for
the brief detention suffered by the Plaintiff is, therefore, a
question of fact. Because the issue was raised in a Reply
Memorandum of Law, Plaintiff has not responded directly
to the damage argument. However, Defendant Barnett has
not demonstrated the lack of a genuine question of material
fact on this issue and, therefore, he has not satisfied his
burden under Rule 56. See FED. R. CIV. P. 56(e); Weinstock
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (moving
party bears the initial burden of establishing that there are no
genuine issues of material fact, and, once such a showing is
made, burden shifts to non-movant tp set forth specific facts
showing that there is a genuine issue for trial). For this reason,
the motion is denied in this respect.

7. Conclusion
Therefore, that much of Fourth Amendment and state
law false arrest claims seeking damages for Mr. Frisbee's
detention after the point in time that the marijuana was
discovered are DISMISSED. These same claims, however,

remain viable inasmuch as they seek damages for the
detention up to the time of the discovery of marijuana.
Further, Officer Barnett is GRANTED qualified immunity for
his role in Mr. Frisbee's strip search on April 1, 1998.

8. State Law Claims—Statute of Limitations
*10 Next, Officer Barnett moves to dismiss the state law
claims asserted against him on the grounds that the Plaintiff
failed to file a Notice of Claim against Officer Barnett
pursuant to General Municipal Law § 50(e), or, in the
alternative, to dismiss on the grounds that the state law
claims were not interposed within the applicable statute of
limitations period. The Plaintiff has not opposed that portion
of Defendant Barnett's motion addressed to the statute of
limitations issue. Because it does not appear that the state law
claims were interposed within one year of the date of accrual,
these claims against Mr. Barnett are DISMISSED. See N.Y.
C.P.L.R. § 215(3); Greiner v. County of Greene, 811 F.Supp.
796, 800 (N.D.N.Y.1993).

9. Severance/Bifurcation
Defendant Barnett also moves pursuant to FED. R. CIV. P.
21 seeking to sever Mr. Frisbee's claims from the plaintiffs'
claims and, pursuant to FED. R. CIV. P. 42(b), seeking to
bifurcate Mr. Frisbee's claims against Mr. Barnett from Mr.
Frisbee's claims against the City of Schenectady. The Plaintiff
does not oppose the severance of his claims from the other
plaintiffs but does oppose the bifurcation of the claim between
the City and the individual defendants.

A. Severance/Separate Trial (bifurcation)—Standard
Rule 21 of the Federal Rules of Civil Procedure allows for the
severance of “any claims,” 5 and Rule 42(b) provides that a
court may order a separate trial of any claim “in furtherance
of convenience or to avoid prejudice, or when separate trials
will be conducive to expedition and economy,” FED. R.
CIV. P. 42(b). The distinction between these two rules is
that “[s]eparate trials usually will result in one judgment,
but severed claims become entirely independent actions
to be tried, and judgment entered thereon, independently.”
9 Charles A. Wright & Arthur R. Miller, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D § 2387.
Trial courts have broad discretion to employ either of
these rules, which are generally determined using the same
standard. Wausau Bus. Ins. Co. v. Turner Const. Co., 2001
WL 460928, at * 2 (S.D.N.Y. May 2, 2001) (citing New York

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

v. Hendrickson Bros ., Inc., 840 F.2d 1065 (2d Cir.), cert.
denied, 488 U.S. 848 (1988)); see also Smith v. Lightning Bolt
Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988).
In exercising this discretion, courts must consider “(1)
whether the claims arise out of the same transaction or
occurrence; (2) whether the claims present some common
questions of law or fact; (3) whether settlement of the
claims or judicial economy would be facilitated; (4) whether
prejudice would be avoided if severance were granted;
and (5) whether different witnesses and documentary proof
are required for the separate claims.” Morris v. Northrop
Grumman Corp., 37 F.Supp.2d 556, 580 (E.D.N.Y.1999). 6
To grant severance or separate trials requires the presence of
only one of these conditions. Lewis v. Triborough Bridge &
Tunnel Authority, 2000 WL 423517, at * 2 (S.D.N.Y. April
19, 2000) (severance); Carson v. City of Syracuse, 1993 WL
260676, at * 2 (N.D.N.Y. July 7, 1993) (bifurcation).

B. Severance
*11 In support of his position to sever the Frisbee claims
from the other two plaintiffs' claims, Mr. Barnett argues that
each plaintiff has a separate claim involving separate arrests
by different officers. 7 He asserts that he stands to suffer
substantial prejudice if severance is not granted because of
the possibility of a taint by evidence of an impermissible
stop or search of another plaintiff by another officer in
another circumstance. As indicated, the Plaintiff consents to
the severance. The City, Mr. Siler, and the other defendants
have not presented a position one way or the other. Based
upon the fact that they were served with the pending motions,
their silence will be deemed acquiescence in the relief sought.
The Court finds that severance is appropriate in this
case. Each individual plaintiff's claims arise from separate
occurrences and involve separate individual defendants. The
individual claims do not arise from a common nucleus of
operative facts nor does it appear that there will be much
overlap in witnesses or documentary proof, at least as the
individual claims are concerned. There is the potential for
some prejudice which can be avoided if severance is granted,
and this potential is not outweighed by the judicial economy
which will be served by one trial.
Therefore, Defendant Barnett's motion to sever Mr. Frisbee's
claims from the main action is GRANTED.

C. Bifurcation (Separate trials)
Bifurcation, or the granting of separate trials, “may be
appropriate where, for example, the litigation of the first issue
might eliminate the need to litigate the second issue, or where
one party will be prejudiced by evidence presented against
another party .” Amato v. City of Saratoga Springs, 170 F.3d
311, 316 (2d Cir.1999). “The party moving for a separate trial
has the burden of showing that [separate trials are] necessary
to prevent prejudice or confusion, and to serve the ends of
justice.” Buscemi v. Pepsico, Inc., 736 F.Supp. 1267, 1271
(S.D.N.Y.1990).
In support of bifurcation, Defendant Barnett makes two
arguments. First, he argues that if the Plaintiff fails on his
claims against the individual officers, the “failure to train”
and “failure to supervise” claims will not need to be litigated.
Thus, Defendants argues, there is the potential for judicial
economy by trying the individual claims first. On this point,
Defendant asserts that the trial of the individual claims will
take merely a few days whereas the trial of the municipal
claims will take substantially longer.
Plaintiff responds that if the claims are bifurcated, he would
be forced to present the same proof twice unless the second
trial is in front of the same jury. Plaintiff's counsel does
not specifically address the quantum of proof that will
be presented on the municipal claims as compared to the
individual claims.
Second, Defendant argues that the potential for prejudice
exists because the Plaintiff may attempt to prove his failure
to train or failure to supervise theories by evidence of prior
misconduct by the officers which would not be admissible on
the individual claims under the Federal Rules of Evidence.
Plaintiff responds that such a safeguard is not required in
this case because specific evidence of past misconduct of the
individual defendants involved in this case will not be offered
to prove claims against the municipality.
*12 Given Defense counsel's representation that the second
set of claims will take considerable time to try in comparison
to the individual claims, Plaintiff's counsel's silence on the
issue, and the potential that the second trial may not be
necessary if Mr. Frisbee does not succeed on his individual
claims, 8 judicial economy is best served by bifurcation.
However, the ends of justice are also best served by trying
both portions of Mr. Frisbee's case “back to back to the same

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

jury.” Carson, 1993 WL 260676, at * 7. This obviates the
need, for all parties, to try the same issues twice.
Therefore, Defendant's motion to bifurcate the claims is
GRANTED. The case will be tried back to back to one jury.

III. CONCLUSION
In conclusion the Court determines as follows:
Defendants City of Schenectady and Mr. Barnett's motions
for summary judgment are GRANTED IN PART AND
DENIED IN PART. That much of Fourth Amendment claims
and state law false arrest claims seeking damages from these
defendants for Mr. Frisbee's detention after the point in time
that the marijuana was discovered are DISMISSED. These
same claims, however, remain viable against these defendants
inasmuch as they seek damages for the detention up to the
time of the discovery of marijuana.
Defendant Barnett's motion for summary judgment on the
grounds of qualified immunity is GRANTED IN PART
AND DENIED IN PART. Mr. Barnett is granted qualified
immunity for his role in the strip search of Mr. Frisbee

occurring on April 1, 1998 and this much of Plaintiff's claim
is DISMISSED. His motion for summary judgment on the
grounds of qualified immunity is denied in all other respects.
Defendant Barnett's motion to dismiss the state law claims
against him is GRANTED, and all state law claims brought
against Mr. Barnett are DISMISSED.
Defendant Barnett's motion to sever the claims of Mr. Frisbee
from the other plaintiffs' claims is GRANTED pursuant to
Rule 21 of the Federal Rules of Civil Procedure. The Clerk of
the Court is hereby ORDERED to assign the severed action a
separate trial date as close in time as possible to the trial date
set in the Rule 16 Scheduling Order in the main action, taking
into account the Court's schedule and the overlap of counsel
in the now-separate actions.
Defendant Barnett's motion to bifurcate the trial of the claim
between the individual officers and the municipal claims is
GRANTED, however, the claims shall be tried back to back
to the same jury.

IT IS SO ORDERED

Footnotes

1
2

3

4

At his deposition, Frisbee was asked who made this statement. He responded: “Siler and Barnett, pretty much Siler though.” Plf.
Dep. p. 66.
The Amended Complaint asserts claims by Mr. Frisbee for false arrest and unlawful search arising from conduct by the City's police
officers on April 1, 1998, April 8, 1998, and July 6, 1998. The Notice of Motion seeks dismissal of all claims by Frisbee whereas
the attorney affirmation in support of the pending motion explicitly limits the motion to the causes of action arising from the April
1, 1998 arrest.
The elements of a cause of action for state common law false arrest are (1) the defendant intended to confine the plaintiff; (2) the
plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not
otherwise privileged. See Kirk v. Metropolitan Transp. Auth., 2001 WL 258605, * 9 (S.D.N.Y.2001) (citing Weyant v. Okst, 101 F.3d
845, 853 (2d Cir.1996); Broughton v. State, 37 N.Y.2d 451, 456 (1975)). Because false arrest is a type of false imprisonment, the
two claims have identical elements. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir.1995), cert. denied, 517 U.S.
1189 (1996).
Barnett asserts that on the date in question, he and Siler were on routine patrol in an area of the City “known to [him] to be a popular
location for drug dealings.” As he approached the corner where the store is located, he observed Frisbee “huddled with several younger
black males. Based upon [his] experience, it looked [to him] as if they were engaged in a drug deal. As [the officers] approached,
a black gentleman ran into the adjacent store, and Mr. Frisbee began to walk away. Mr. Frisbee's daughter was not present at the
time.” Barnett Aff. ¶ 3.
At his deposition, Frisbee said that there were “one or two [known drug houses] on every block” in the area in question; that there
were “a lot of [drug] users” in the area where the store is located; but denied that it was known to him as an area where drugs were
sold. Frisbee Dep., p. 154–155. Frisbee also states in his deposition that when he approached the store with his daughter and her
friend, there were four (4) or five (5) kids within a “half block radius” in front of the store who “scurried ... Took off when they seen
[the police] pull up.” Frisbee Dep., p. 173–174. He asserts further, however, that he had no involvement with these individuals.

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Gonzalez v. City of Schenectady, Not Reported in F.Supp.2d (2001)

5

6

Barnett asserts that Siler approached Frisbee and began asking him questions. When Plaintiff was asked about drugs, “he denied
that he ha[d] any and said to go ahead and search him.” That is when the police found the marijuana inside a cigarette package.
Barnett denies taking any money after the strip search. He asserts that the stip search occurred pursuant to the policy of the City.
Rule 21 provides:
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion
of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be
severed and proceeded with separately.
Other Courts have held that the test is:
“(1) whether the issues sought to be tried separately are significantly different from one another; (2)
whether the severable issues require the testimony of different witnesses and different documentary proof;
(3) whether the party opposing the severance will be prejudiced if it is granted; and (4) whether the party
requesting the severance will be prejudiced if it is not granted.”

7
8

BD ex rel. Jean Doe v. DeBuono, 2000 WL 249115, at * 5 (S .D.N.Y. Feb. 28, 2000).
He argues that the only basis to join the three in the first place is because they all involved a single issue of whether the City's strip
search policy was unconstitutional. Now that the this issue has been decided against the City, Defendant Barnett argues that the only
issue left to be tried on the strip search issue is whether each plaintiff has made out a constitutional claim.
See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) and Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir.1994), both standing for
the proposition that it is well-settled that a claim of negligent training or supervision under Monell lies against a municipality only
where there is a finding of a constitutional violation by one of its officers.

End of Document

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