Stegemann v. Rensselaer County Sheriff's Office et al

Filing 326

DECISION AND ORDER: The Court GRANTS the motions of all Defendants who seek dismissal of Plaintiff's Fourth Amendment destruction-of-property claims. Plaintiff's claims which implicate the legality of the search of his property - rather than the implementation of that search - have been dismissed pursuant to the rule in Heck v. Humphrey. Plaintiff may replead those claims if subsequent events lift the bar established by that decision. Only in that sense are the claims dismissed without prejudice. Plaintiff may not re-file those claims until the bar is removed, as noted further herein. Defendants' motions to dismiss, dkt. #s #228 , #240 , and #304 , are hereby GRANTED. Plaintiff's claims against Defendants Richard Giardino, Sandra Blodgett, Mark Geracitano, Shane Holcomb, Arthur Hyde, Richard McNally, Jami Panichi, Rensselaer County, the Rensselaer County Sheriff's Office, Jason Robelotto, William Roy, Patrick Russo, Justin Walread, William Webster, Steve Wohlleer, Derek Pyle, and Corey Film are dismissed with prejudice except for those claims which are subject to the bar in Heck v. Humphrey, 512 U.S. 477 (1994). To the extent that Plaintiff moves for leave to file a Third Amended Complaint to name Thomas Lowrey as Defendant, that motion is DENIED (See Dkt. #245 ). As explained in the Court's previous decisions, Plaintiff's claims which are subject to that Heck bar may be re-plead, BUT ONLY AT SUCH TIME AS PLAINTIFF CAN DEMONSTRATE THAT HE CAN OVERCOME THAT BAR DUE TO A FAVORABLE DETERMINATION FROM SOME OTHER COURT, as noted further herein. The #298 Motion of Defendants Dale Gero, Steve Jones, Michelle Mason, Robert Patterson, William Scott, and John Stec to set aside default and permit filing of an answer, is hereby GRANTED. The answer and crossclaim entered on the docket on September 28, 2018 is hereby accepted for filing. Plaintiff's #300 Motion for Default Judgment is DENIED. Signed by Senior Judge Thomas J. McAvoy on October 31, 2018. {Copy served on the pro se plaintiff via regular mail at F.C.I. Berlin, Inmate Mail/Parcels, P.O. Box 9000, Berlin, NH 03570}.(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JOSHUA G. STEGEMANN,
Plaintiff,
vs.

1:15-CV-21

RENSSELAER COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
Before the Court are various motions. Defendant Richard C. Giardino moves to
dismiss the Complaint. See dkt. # 228. Defendants Sandra Blodgett, Mark Geracitano,
Shane Holcomb, Arthur Hyde, Richard McNally, Jami Panichi, Rensselaer County, Jason
Robelloto, William Roy, Patrick Russo, Justin Walread, William Webster, Steve
Wohlleber, and Dereck Pyle (“Rensselaer Defendants”) move to dismiss the Complaint.
See dkt. # 240. Defendants Michelle Mason, William Scott, Dale Gero, John Stec, Robert
Patterson, and Steve Jones (“Mass. State Police Defendants”), also move to set aside the
Clerk’s entry of default. See dkt. # 298. Plaintiff moves for default judgment against those
Defendants seeking to set aside the entry of default. See dkt. # 300. Defendant
Investigator Corey Film moves to dismiss the Complaint. see dkt. # 304. The parties have
briefed the issues and the Court will decide the matter without oral argument.
I.

BACKGROUND

Plaintiff filed his original Complaint, which he brought pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), on January 8, 2015. See dkt. #
1. Plaintiff alleged violations of his constitutional rights by Defendants, various police
agencies and departments, law enforcement officials, and cellular telephone providers in
connection with a search of his residence pursuant to a drug trafficking investigation. That
investigation eventually led to Plaintiff’s conviction and prison sentence. Plaintiff alleged
that the search of his property violated his Fourth and Fifth Amendment rights. Id. He
also alleged that Defendants’ destruction of his property violated his Fourteenth
Amendment rights. Plaintiff also filed a motion for leave to proceed in forma pauperis.
See dkt. # 2.
After a series of decisions and an appeal, the case bef ore this Court eventually
dropped any claims that depended on Plaintiff’s exoneration on the charges against him,
as such claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Instead,
the case centered on claims that those who executed the search had done so in an
unreasonable manner, destroying Plaintiff’s property and violating his Fourth Amendment
rights. A number of defendants then filed motions to dismiss the case. In a decision on
March 5, 2018, the Court granted these motions, finding that collateral estoppel barred
Plaintiff’s claims against most of the moving defendants, and that Plaintiff had failed to
state claims for municipal or supervisory liability. See dkt. # 201. The Court noted,
however, that several of the Defendants named in the operative pleading–Plaintiff’s
Second Amended Complaint–had not yet been served. See dkt. # 134. Those
Defendants have now been served, and they bring the instant motions to dismiss.

2

The Court assumes familiarity with the factual allegations in the Second Amended
Complaint from the Court’s previous decision. The Court will relate the facts relevant to
the various motions here analyzed at an appropriate point.
II.

LEGAL STANDARD
Numerous Defendants have moved to dismiss the Complaint for failure to state a

claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). In addressing such motions, the Court must accept “all factual allegations in the
complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Holmes v.
Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply to legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. at 678. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting
Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). W hen, as here, the Plaintiff proceeds pro
se, the Court “‘construe [the complaint] broadly, and interpret [it] to raise the strongest
arguments that [it] suggests.’” Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir.
2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). “This is especially true
when dealing with pro se complaints alleging civil rights violations.” Id.
III.

ANALYSIS
A.

Motion of Richard C. Giardino

Defendant Richard C. Giardino moves to dismiss the claims against him in the
Amended Complaint. Giardino was named in Plaintiff’s Second Amended Complaint, but

3

had not yet been served at the time of the Court’s decision on the first motions seeking
dismissal of that version of the Complaint. Giardino has now been served and seeks
dismissal. He argues that he was not Sheriff of Fulton County at the time of the underlying
incident. He was first elected to the Office in November 2015 and therefore cannot be
liable. Defendant requests that the Court take judicial notice of this fact and dismiss the
Second Amended Complaint against him as he cannot be liable. Plaintiff agrees that
Giordano cannot be liable and asks that the Court substitute f ormer Sheriff Thomas
Lowrey as Defendant. He contends that substituting the name of Lowrey for Giordano as
Defendant in his Second Amended Complaint would permit him to state a claim against
Lowrey.
The Court interprets Plaintiff’s response, dkt. # 245, as a motion for leave to amend
his Second Amended Complaint and replace Giordano with Lowrey as Defendant.
Giordano, anticipating such a motion, opposes it. The Federal Rules of Civil Procedure
provide that “leave to amend the pleadings should be ‘freely give[n] . . . when justice so
requires.’” AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725
(2d Cir. 2010)). Generally, courts in this Circuit have permitted “‘a party to amend its
pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.’” Id.
(quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d. Cir. 1993)). Still, “m otions to
amend should generally be denied in instances of futility, undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, or undue
prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122,
126 (2d Cir. 2008) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)).
The Second Amended Complaint alleges that:
4

31. Richard C. Giardino is a the [sic] Fulton County Sheriff. He is a policy maker
for Fulton County. Fulton County frequently farms the training of its canine
deputies out to Rensselaer County. Giordino has a policy and custom of farmingout the in-service training of his canine deputies to Rensselaer County.
...
33. . . . Giardino . . . failed to train [his] own deputies, and failed to supervise [his]
own deputies. The deputies were sure to confront situations wherein protection of
the Fourth Amendment Rights of those they came into contact with during their inservice training in Rensselaer County was at its apex. . . . Giardino [was]
deliberately indifferent to the rights of such people, including me.
...
36. . . . Giardino . . . failed to adequately train and supervise the officers that
belong to their respective agencies.
Second Amended Complt., dkt. # 134, at ¶ 31, 33, 36. Plainif f’s proposed amendment
would replace Giardino with Lowrey.
The Court decided in its previous decision that Plaintiff’s claims here fail to state a
claim for supervisory liability. Plaintiff had argued that other sheriffs could be liable as
supervisors who created policies which violated Plaintiff’s rights. “[L]iability for
supervisory government officials cannot be premised on a theory of respondeat superior
because § 1983 requires individual, personalized liability on the part of each government
defendant.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). A plaintif f must
introduce “[e]vidence of a supervisory official’s ‘personal involvement’ in the challenged
conduct.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003) (quoting Johnson
v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001)). Personal
involvement can include “direct participation by the supervisor in the challenged conduct.”
Id. Personal involvement by a supervisor can “also be established by evidence of an
official’s (1) failure to take corrective action after learning of a subordinate’s unlawful
conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross
negligence in supervising subordinates who commit unlawful acts, or (4) deliberate
5

indifference to the rights of others by failing to act on information regarding the unlawful
conduct of subordinates.” Id.
Plaintiff’s remaining claims are that the Defendants violated his rights in the manner
in which they conducted the search of his property, which he claims was excessively
destructive. Plaintiff’s Second Amended Complaint contains no allegations of any specific
policy or custom instituted by any sheriff that caused his injuries. Instead, Plaintiff
describes events which he claims violated his constitutional rights and assigns
responsibility to those who supervised the officers involved in the incident. In other words,
Plaintiff seeks to impose vicarious liability on supervisors. He cannot do so.
As such, any amendment to substitute Thomas Lowrey for Giardino would be futile,
and the Court will deny that motion to the extent that Plaintiff attempts to raise it.
B.

Motion of Rennselaer Defendants

The Rennselaer Defendants also move to dismiss the Second Amended Complaint
against them. They argue that collateral estoppel and the law of the case bar Plaintiff’s
claims, that Plaintiff fails to allege personal involvement on the Defendants in reference to
the alleged property damage, that qualified immunity applies for the individual Defendants,
that Plaintiff has not alleged properly any municipal liability, and that the statute of
limitations has run for some of the Defendants. These Defendants had not been served
with process at the time the Court rendered its earlier decision.
i.

Collateral Estoppel

As did many of the Defendants who were served with the Complaint, Amended
Complaint, and Second Amended Complaint, the Rennselaer Defendants allege that

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Plaintiff’s claims are barred by the doctrine of collateral estoppel. They contend that
Plaintiff filed identical claims regarding the search of his property in the New York Court of
Claims, where a state judge granted summary judgment to defendants on those claims.
The Court’s previous decision on the other defendants’ motions to dismiss
explained how collateral estoppel applies to this case:
“Federal courts must give State court judgments ‘the same preclusive effect as
would be given to the judgment under the law of the State in which the judgment
was rendered.’” Boomer v. Bruno, 134 F.Supp.2d 262, 267 (N.D.N.Y. 2001)
(quoting Johnson v. Watkins, 101 F.3d 792, 794 (2d Cir. 1996)). Collateral
estoppel “precludes a party from relitigating in a subsequent proceeding an issue of
law or fact that has already been decided in a prior proceeding.” Boguslavsky v.
Kaplan, 159 F.3d 715, 719-720 (2d Cir. 1998). Collateral estoppel req uires four
elements: “(1) the issues of both proceedings must be identical, (2) the relevant
issues were actually litigated and decided in the prior proceeding, (3) there must
have been ‘full and fair opportunity’ for the litigation of the issues in the prior
proceeding, and (4) the issues were necessary to support a valid and final judgment
on the merits.” Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A.,
56 F.3d 359, 368 (2d Cir. 1995). In addition to these f actors, the “court must
satisfy itself that application of the doctrine is fair.” Bear, Stearns & Co. v. 1109580
Ont. Inc., 409 F.3d 87, 91 (2d Cir. 2005).
Defendant points to a claim and decision from the New York Court of Claims. See
Declaration of Bruce J. Borvin, dkt. # 79-1, exhs. A-B. Plaintiff filed his claim
against the State of New York on May 31, 2016. See Exh. A to Borvin Dec.
Plaintiff’s claim complained about the same series of events that led to the instant
action. Id. Plaintiff alleged his rights were violated by aerial surveillance from New
York and Massachusetts law enforcement officers. Id. at ¶¶ 5-11. He alleged that
an improper search warrant led to a search of his property from April 30 to May 2,
2013. Id. at 12-30. Plaintiff alleged:
28.

Over the course of three (3) days–April 30th, 2013 through May 2nd, 2013–the
police flagrantly exceeded the scope of the warrant, excavating the grounds,
and seizing myriad items not particularized in the warrant. The interior of the
residence was destroyed. Ceilings and walls were torn down. Speakers
were ripped out of walls. Food items, books, and personal papers were torn
up and strewn throughout the residence. The doors were battered down.
Patio-brick walkways and landings were torn apart. Large rock gardens,
park benches, water fountains, grape arbors, shrubs, pine trees, and outdoor
lighting, were bulldozed and removed from the property. Over twenty (20)
7

ton of decorative pea stone and quartz crystal was excavated and removed
from a 75 x 100 foot Serenity Garden.
Id. at ¶ 28. He claimed this conduct violated the New York Constitution. Id. at ¶ 29.
Plaintiff alleged that “Respondent State of New York, by its agents, inflicted
Constitutional Torts.” Id. at ¶ 37. Plaintiff sought more than $3 million in damages.
Id. at ¶ 42.
The Hon. Judith A. Hard, Judge of the Court of Claims, issued a decision in that
action on January 17, 2017. See Exh. B to Borvin Dec., dkt. # 79-1. Judge Hard
granted summary judgment to Defendants on Plaintiff’s claims. In relevant part,
Judge Hard found that:
there is no evidence in the record to indicate that the of ficers overstepped
the bounds of the warrants, that they engaged in excessive conduct in
entering claimant’s property, or that their execution of the warrants was
accomplished with unnecessary force or severity (see generally Onderdonk v
State of New York, 170 Misc. 2d at 162)). Further, there is no evidence to
indicate that the officers “fail[ed] to give due respect to the property and carry
out the search warrant in an unprofessional, unreasonable or excessive
manner.” (id.). Accordingly, the Court finds that the cause of action
sounding in negligent destruction of property in connection with the
execution of the warrants must be dismissed.
Id. at 10-11. Judge Hard dismissed Plaintiff’s entire complaint before the Court of
Claims, in relevant part granting summary judgment on Plaintiff’s claims “sounding
in . . . destruction of property” because the Court “found no issues of fact related
thereto.” Id.
The Court finds that all four elements for collateral estoppel as raised by these
Defendants have been met on the sole issue remaining in Plaintiff’s Complaint. As
to the first, identity of issue, “the burden of proving identity of issue rests on the
proponent of collateral estoppel[.]” Kosakow v. New Rochelle Radiology Assocs.,
P.C., 274 F.3d 706, 730 (2d Cir. 2001). Courts take “a f unctional approach” to
“analyzing collateral estoppel in New York, and it should not be applied rigidly.” Id.
at 731. The question is whether there is “an identity of issue which has necessarily
been decided in the prior action and is decisive in the present action[.]” Schwartz v.
Public Adm’r of County of Bronx, 24 N.Y.2d 65, 71 (1969). A party can satisfy the
“identify of issues” requirement by showing that the state court “necessarily decided
the very issues that plaintiff is seeking in substance to pursue here under § 1983[,] .
. that his federal claims rest on the same factual grounding as presented to the”
state court, and that the prior body’s “findings and conclusions . . . are fatally
inconsistent with plaintiff’s current factual contentions and claims.” Basak v. N.Y.
State Department of Health, 9 F.Supp.3d 383, 395 (S.D.N.Y. 2014).
8

The Plaintiff’s complaint before the Court of claims and the decision by the Judge in
that Court decided the same issues regarding the reasonableness of the property
destruction during the search that form the basis of Plaintiff’s claims in this Court.
The Court of Claims found that no evidence supported Plaintiff’s claim that officers
had negligently destroyed his property during their search. In New York, an officer
“may be held liable for damages negligently caused in the court of executing a valid
order of seizure.” Korsinsky v .Rose, 120 A.D.3d 1307, 1309 (2d Dept. 2014).
Proof of negligence requires a showing of “‘the existence of a duty on defendant’s
part to plaintiff, breach of the duty and damages.’” Id. (quoting Greenberg, Trager &
Herbst, LLP v. HSBC Bank USA, 17 NY3d 565, 576 (2011)). In New York, an
officer executing a search warrant has a “duty . . . to execute the warrant without
unnecessary force or severity.” Siemiasz v. Landau, 224 A.D. 284, 285 (4 th Dept.
1928). Officers cannot be held responsible for property destruction in this context
unless they go “so far as to destroy property that was not reasonably necessary to
effectuate the search warrant and potentially violate the Fourth Amendment.”
Onderdonk v. State, 170 Misc.2d 155, 162 (Ct. of Claims1996). Since the issues
are coextensive between Plaintiff’s state-court and federal-court claims, the Court
must find an identity of issue here.
As to the other three elements of collateral estoppel, the Court finds those elements
met as well. First, the parties moved for summary judgment in the Court of Claims
proceeding, and the Judge examined the relevant evidence to determine whether
the destruction of property met the standard. As such, the issues relevant to the
matter were fully litigated and decided. Second, the Court of Claims issued a
detailed written decision after the parties collected evidence and briefed the issues
concerning destruction of property; a “full and fair opportunity” to litigate the issue
therefore occurred. Finally, the Court of Claims opinion summarized above
addressed the nature of the search and the reasonableness of the destruction of
the property, and thus reached all of the issues necessary to support a valid and
final decision on the merits of that search issue. Collateral estoppel applies in this
matter.
The Court is unpersuaded by Plaintiff’s arguments. Plaintiff first asserts that
collateral estoppel does not apply because he has appealed the Court of Claims
decision and that case therefore lacks finality. Plaintiff misunderstands the
doctrine, which provides that “pending appeals do not alter the finality or preclusive
effect of a judgment.” Struder v. SEC, 148 Fed. Appx. 58, 59 (2d Cir. 2005) (citing
Blinder, Robinson & Co. v. SEC, 837 F.2d 1099, 1104 n.6 (D.C. Cir. 1989)). His
argument therefore fails. Plaintiff next contends that he was not permitted to raise
constitutional claims in the Court of Claims, and that identity therefore does not
exist. The Court has already rejected that position, as explained above. Finally,
Plaintiff contends that only the County could be a party to an action in the Court of
claims and that collateral estoppel cannot be applied. As ex plained above, that
doctrine does not require an identity of parties, and Plaintiff’s position is unavailing.
9

For the reasons stated above, the Court will grant the State Defendants’ motion to
dismiss in full.
See dkt. # 201 , at 16-21. The Court further found that these principles applied to
individual defendants employed by the City of Pittsfield, Massachusetts, concluding that:
As to the individual Defendants sued in their individual capacities, the Court will
grant the motion on the basis that collateral estoppel bars those claim s. For the
reasons explained above, the Court agrees that the decision of the Court of claims
represented a full and fair opportunity to litigate the claims of unreasonable
destruction of property during the search, and that collateral estoppel theref ore bars
any such claims. The fact that moving Defendants were not parties to the suit in
the Court of Claims does not prevent the Court from applying collateral estoppel.
Courts are clear that “[a] requirement of complete identity of parties serves no
purpose” in the collateral estoppel context “as long as the person against whom the
findings are asserted or his privity has had a full and fair opportunity to litigate the
identical issue in the prior action.” Carino v. Deerfield, 750 F.Supp. 1156, 1170
(N.D.N.Y. 1990) (citing Blonder-Tonque Lab. Inc. v. Univeristy of Illinois Found.,
402 U.S. 313, 329 (1971)). Since Plaintiff had a full and fair opportunity to litigate
his claims, collateral estoppel applies to the search claims here.
Id. at 24.
As to the Rennselaer Defendants, the Second Amended Complaint alleges that
Defendants Wohlleber, Hyde, and Holcomb were involved in the investigation that led to
the raid on his home. 2nd Amend. Complt. at ¶ 9. Defendant Holcomb applied for the
warrant that led to the search. Id. at ¶ 10. Defendants Hyde, Holcomb, Wohlleber, Roy,
Geracitano, and Robelotto took part in the search. Id. W ohlleber allegedly involved
himself in aerial surveillance of Planitiff’s home. Id. at ¶ 13. Roy and Hyde took part in
Plaintiff’s arrest. Id. at ¶ 15. Walread guarded Plaintiff in a vehicle while the search
occurred. Id. Wohlleber “invited the Massachusetts Officers” to “do whatever they
wanted” when they searched Plaintiff’s property. Id. at ¶ 17. Plaintiff alleges that “[t]he
above defendants destroyed my residence and property and prevented” Plaintiff’s uncle
from coming onto the property in his behalf. Id. at ¶ 22. The searchers, Plaintiff alleges,
10

destroyed his property in their search. Id. No officers intervened to stop them. Id. at ¶ 23.
Plaintiff also alleges that Defendants Russo, Pyle, McNally and Hyde served as
“commanders and supervisors of the Rensselaer County Drug Task Force” and made
policy for the County with respect to the task force. Id. at ¶ 30. Plaintiff also alleges that
Hyde, McNally, and Russo “failed to supervise and intervene in the actions of the officers
and agents” who performed the search. Id. at ¶ 36. Defendant Webster appears at the
end of Plaintiff’s Second Amended Complaint. Id. at ¶ 41. Plaintiff met Webster, an
Investigator, at the Rensselaer County Jail. Id. Plaintiff asked Webster why investigators
had destroyed his home. Webster responded that “It wasn’t us. It was the Berkshire guys
that ran around and destroyed everything.” Id.
The only viable claims in this case arise out of the execution of the search. All of
the individual Defendants here named who could be culpable in any sense could only be
culpable for their role in the execution of the search.1 Since the Court has already

In any case, though Plaintiff names Defendant Sandra Blodgett in the Second
Amendment Complaint’s caption, he does not even mention her in the actual pleading.
The motion would be granted with respect to Blodgett even if Plaintiff had stated a claim
against the other Defendants. Likewise, Plaintiff’s allegations that Defendants Russo,
Pyle, McNally and Hyde are liable as supervisors fail to state a claim and would be
dismissed in that respect too. “[L]iability for supervisory government officials cannot be
premised on a theory of respondeat superior because § 1983 requires individual,
personalized liability on the part of each government defendant.” Raspardo v. Carlone,
770 F.3d 97, 116 (2d Cir. 2014). A plaintiff must introduce “[e]vidence of a supervisory
official’s ‘personal involvement’ in the challenged conduct.” Hayut v. State Univ. of N.Y.,
352 F.3d 733, 753 (2d Cir. 2003) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239
F.3d 246, 254 (2d Cir. 2001)). Personal involvement can include “direct participation by
the supervisor in the challenged conduct.” Id. Personal involvement by a supervisor can
“also be established by evidence of an official’s (1) failure to take corrective action after
learning of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering
the unlawful conduct, (3) gross negligence in supervising subordinates who commit
unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on
information regarding the unlawful conduct of subordinates.” Id. Plaintiff’s Amended
1

11

determined that such claims are barred by the doctrine of collateral estoppel, the motion of
the Rensselaer Defendants will be granted in this respect.
ii.

Municipal Liability

Plaintiff also attempts to state claims against Rensselaer County and the
Rensselaer County Sheriff’s Office. The Rensselaer Defendants argue that those claims
must be dismissed as well. Municipal liability is limited under Section 1983 by Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978). In that case, the Suprem e Court found that
municipal liability existed “where that organization’s failure to train, or the policies or
customs that it has sanctioned, led to an independent constitutional v iolation.” Segal v.
City of New York, 459 F.3d 207, 219 (2d Cir. 2006). To prevail, a plaintiff must “identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of County Commr’s v.
Brown, 520 U.S. 397, 403 (1997). “A government’s official policy may be ‘made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy.’”
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 142 (2d Cir. 1999)
(quoting Monell, 436 U.S. at 694). Plaintiff must demonstrate that his rights were violated
“pursuant to a governmental custom, policy, ordinance, regulation, or decision.” Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Plaintif f must show “(1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”
Id.

Complaint contains no such allegations, but instead simply describes events which he
claims violated his constitutional rights and assigns responsibility to those, like the
Rensselaer supervisory Defendants, who supervised the officers involved in the incident.
In other words, Plaintiff seeks to impose vicarious liability on those Defendants. He
cannot do so, and the motion must be granted in that respect as well.
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Plaintiff’s Second Amended Complaint contains no allegations that his injuries were
the result of a municipal policy and/or custom. The Second Amended Complaint simply
contains broad allegations that law enforcement participated in unconstitutional activity
against Plaintiff. The Court has previously determined that Plaintiff’s allegation of
unconstitutional property damage is sufficient to survive an initial screening. Plaintiff’s
Second Amended Complaint does allege property damage, but does not allege that the
property damage came as a result of any municipal policy or custom. The motion will
therefore be granted in this respect. Similarly, Plaintiff names as a Defendant the
Rensselaer County Sheriff’s Office. He likewise offers no allegation that the Defendant
Office violated his rights pursuant to a policy or custom, and has not stated a claim.
Moreover, “New York law governs the capacity of the police department to sue or be sued”
under Section 1983, and “[i]n New York, [police] departments like the defendant, which are
merely administrative arms of a municipal corporation, do not have a legal identity
separate and apart from the” county. Loria v. Irondequoit, 775 F.2d 599, 606 (W .D.N.Y.
1990). Any claims against the Rensselaer County Sheriff’s Office must be dismissed as
well.
Plaintiff also appears to argue that Rensselaer County is liable because of a failure
to train. “Municipal liability may . . . be premised on a failure to train employees when
inadequate training ‘reflects deliberate indifference to . . . constitutional rights.’” Okin v.
Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009) (q uoting City of
Canton v. Harris, 489 U.S. 378, 392 (1989)). To demonstrate such deliberate indifference,
the plaintiff must demonstrate “(1) ‘that a policymaker knows to a moral certainty that her
employees will confront a given situation’; (2) ‘that the situation either presents the
13

employee with a difficult choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling the situation’; (3) ‘that the
wrong choice by the . . . employee will frequently cause the deprivation of a citizen’s
constitutional rights.’” Id. (quoting Walking v. City of New York, 974 F.2d 298, 297-98 (2d
Cir. 1992)). “‘[D]eliberate indifference may be inferred if the complaints are followed by no
meaningful attempt on the part of the municipality to investigate or to forestall further
incidents.’” Id. (quoting Vann v. City of New York, 72 F.3d 1040,1049 (2d Cir. 1995)). The
allegations in the Second Amended Complaint contain no such claims, and the Court will
grant the motion in this respect as well.
All of Plaintiff’s claims against the Rensselaer County Defendants, therefore, must
be dismissed. Because Plaintiff’s claims are either barred by collateral estoppel or fail to
state any claim against the municipality, the Court does not need to address the
Defendant’s other arguments concerning qualified immunity and the statute of limitations.2

A three-year statute of limitations governs claims brought pursuant to 42 U.S.C. §
1983 in New York. Jewell v. County of Nassau, 917 F.3d 738, 740 (2d Cir. 1990). Plaintif f
is correct that Defendant Pyle was named in the initial Complaint and served with that
Complaint. Though the statute of limitations defense does not apply to him, the claims
against him are dismissed on the same basis that all other claims against the individual
Defendants are dismissed. See dkt. #s 1, ¶ 11; 35 (amending summons to include Pyle).
As to Defendants Roy and McNally, both added after the three-year statute of limitations
had run, the Court notes that a Plaintiff may sometimes be permitted to add a Defendant
to a Section 1983 claim after the statute of limitations has run, particularly when “the newly
added defendants were not named named originally because the plaintiff did not know
their identities.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). If a Complaint
names Doe defendants, a Plaintiff under certain circumstances can also name a party to
replace a Doe defendant with the correct name. Id. at 518-19. Plaintiff did not name any
Doe defendants here. Instead, in responding to Defendants’ motion, Plaintiff claims that
Roy was an “unknown” defendant at the time he filed his initial Complaint. See Plaintiff’s
Response, dkt. # 261, at 8. He does not allege the same for McNally, but instead claims
that he had notice because of his position as District Attorney of Rensselaer County at the
time of the incident in question. As such, if the Court were not dismissing the claim
2

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C.

Motion of Defendant Investigator Corey Film

Defendant Corey Film also seeks dismissal of the case against him, relying on the
same basis as the Rensselaer Defendants. With reference to Film, Plaintiff’s Second
Amended Complaint alleges that Film was one of 50 law enforcement officials who met to
plan the raid on his home on April 30, 2013. Second Amend. Complt. at ¶ 10.
Investigator Film is not again referenced in the Second Amended Complaint, but when
read generously that document could also allege that Film was among the police officers
who “tore down interior walls and ceilings, ripped out insulation and left it scattered on the
floor, tore off wainscoating, tore down shelfs [sic], ripped speakers out of the walls,
scattered books, mediacl [sic] records, personal love letters, religious items, photographs,
computers, televisions” and tore about landscaping, trees, ponds, and destroyed a
“Chinese Maple Serenity Garden.” Id. at ¶ 22.
As explained above, however, this allegation that Defendant Film was involved in
the destruction is barred by the collateral estoppel doctrine. Plaintiff offers no other
allegations against Film. Because Plaintiff has not stated a claim against Defendant Film
upon which relief could be granted, the Court will grant Film’s motion for the same reasons
as those brought by the Rensselaer Defendants.
D.

Motion to Set Aside Default

against these two Defendants for the reasons explained, the Court would dismiss on
statute of limitations ground with respect to Defendant McNally and deny the motion with
leave to renew with respect to Defendant Roy. Plaintiff would need to provide evidence to
support his claim that he did not know Roy’s identity until he filed his Second Amended
Complaint.
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Defendants Dale Gero, Steve Jones, Michelle Mason, Robert Patterson, W illiam
Scott, and John Stec have filed a motion to set aside the clerk’s Entry of Default and for
leave to file a late answer. See dkt. # 298. The Defendants are all Massachusetts State
Police Officers alleged to have participated in the search of Defendant’s property that
forms the basis for this suit. Defendants have since filed an answer and a cross-claim.
See dkt. # 317. Plaintiff opposes the motion.
Federal Rule of Civil Procedure 55(c) provides that a “court may set aside an entry
of default for good cause[.]” F ED. R. CIV. P. 55(c). The decision to set aside an entry of
default is “left to the sound discretion of a district court because it is in the best position to
assess the individual circumstances of a given case and to evaluate the credibility and
good faith of the parties.” Enron Oil Co. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Still,
“because defaults are generally disfavored and reserved for rare occasions, when doubt
exists as to whether a default should be . . . vacated, the doubt should be resolved in favor
of the defaulting party.” Id. at 96.
Here, the moving Defendants failed to answer the Second Amended Complaint and
the Court entered Default against them. See dkt. # 287. Defendants relate that they
became aware of the instant action in “or about August 2017[.]” See dkt. # 298 at ¶ 2.
Defendants’ counsel in this matter had represented them in a case Plaintiff filed in New
York Supreme Court that made the same allegations. Id. at ¶¶ 2-3. Counsel appeared
pro hac vice as he was not admitted to the New York bar. Id. at ¶ 3. Assuming he would
have to file another petition for pro hac vice admission to this Court, defense counsel
obtained a certificate of good standing from the Commonwealth of Massachusetts on
August 15, 2017. Id. at ¶ 4. Plaintiff did not serve the moving Defendants until June
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2018. Id. at ¶ 5. Upon service, Defendants’ counsel sought a sponsoring attorney for pro
hac vice admission to this Court. Id. at ¶ 6. Counsel intended to use the certif icate of
good standing he had obtained in August 2017, but found that this Court requires that the
certificate of good standing be no more than 6 months old. Id. at ¶ 7. Counsel and his cocounsel had intended to provide an answer in a timely fashion, but the time for such
answer had run before they could obtain the necessary documents. Id. at ¶ 8. That failing
was not intentional. Id. The day after the Court entered default, defense counsel filed
their petitions for pro hac vice admission, which the Court granted on August 28, 2018. Id.
at ¶ 11; see dkt. #s 293, 294.
The Court will grant the motion to set aside default and accept the Defendants’
answer and crossclaim for filing. See dkt. # 317. Recognizing the preference in United
States Courts for decisions on the merits of cases, the Court finds that good cause exists
for Defedants’ failure to answer the Complaint. First, the delay in filing an answer came
inadvertently, based on clerical error and (at worst) a failure to read the Court’s rules with
enough attention to detail. Second, Plaintiff delayed nearly a year in serving the Second
Ameded Complaint on the Defendants. Plaintiff’s own actions therefore contributed to the
delay in this matter. Third, discovery has not yet commenced in this case, and therefore
no undue prejudice and delay exists in permitting Defendants to answer in a case still in its
preliminary stages. Fourth, Defendants, like the other Defendants here named, certainly
have viable defenses in this matter. They should be permitted to pursue them.
Defendants’ motion will therefore be granted.
E.

Motion for Default Judgement

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Plaintiff, noting the Court’s entry of default against the above Defendants, seeks
default judgment against them. As the Court has determined to set aside the entry of
default against them, Plaintiff’s motion is moot. The Court will therefore deny that motion.
IV.

Conclusion
The Court here grants the motions of all Defendants who seek dismissal of

Plaintiff’s Fourth Amendment destruction-of-property claims. Plaintiff’s claims which
implicate the legality of the search of his property–rather than the implementation of that
search–have been dismissed pursuant to the rule in Heck v. Humphrey. Plaintiff may replead those claims if subsequent events lift the bar established by that decision. Only in
that sense are the claims dismissed without prejudice. Plaintiff may not re-file those
claims until the bar is removed. The Court has also previously dismissed claims based on
alleged violations of certain state and federal statutes and those may not be replead
either.
The Court earlier granted the motions of all Defendants who sought to dismiss
those claims against the individual defendants pursuant to the doctrine of collateral
estoppel. Those claims were be dismissed with prejudice because better pleading would
not cure that problem. The same condition applies to the claims dismissed here.
The Court has also concluded that Plaintiff has failed to state a claim for Monell
liability against the various municipal entities and supervisory liability against various
officials sued in this case. Normally, the Court would permit repleading of such claims.
Plaintiff may have been able to supplement his allegations to include facts making it
plausible that his injuries were the result of an official policy and/or custom. The Court will

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not provide that opportunity in this case, however. First, Plaintiff would be offering a Third
Amended Complaint. He has already been provided several opportunities to state a claim
for municipal and supervisory liability, and has not done so. Opportunities to am end to
better frame a claim cannot be endless. Second, and more important, attempting to replead such claims would be pointless. To prove claims against the municipalities in the
present posture of the case would require that Plaintiff plead that his right to a reasonable
search had been violated pursuant to an official policy or custom. As the Court has
explained, however, collateral estoppel bars such claims. Plaintiff had a full and fair
opportunity to litigate such claims in state court. Allowing repleading would therefore be
pointless.
The Court will therefore grant the Defendants’ motions with prejudice with respect
to all claims except those the Court has previously determined are subject to the Heck bar.
Plaintiff may only re-plead those claims when he can demonstrate the lifting of the Heck
bar.
As such, Defendants’ motions to dismiss, dkt. #s 228, 240, and 304, are hereby
GRANTED. Plaintiff’s claims against Defendants Richard Giardino, Sandra Blodgett, Mark
Geracitano, Shane Holcomb, Arthur Hyde, Richard McNally, Jami Panichi, Rensselaer
County, the Rensselaer County Sherif’s Office, Jason Robelotto, William Roy, Patrick
Russo, Justin Walread, William Webster, Steve Wohlleer, Derek Pyle, and Corey Film are
dismissed with prejudice except for those claims which are subject to the bar in Heck v.
Humphrey, 512 U.S. 477 (1994). To the extent that Plaintiff moves for leave to file a Third
Amended Complaint to name Thomas Lowrey as Defendant, that motion is DENIED. See
dkt. # 245. As explained in the Court’s previous decisions, Plaintiff’s claims which are
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subject to that Heck bar may be re-plead, BUT ONLY AT SUCH TIME AS PLAINTIFF
CAN DEMONSTRATE THAT HE CAN OVERCOME THAT BAR DUE TO A FAVORABLE
DETERMINATION FROM SOME OTHER COURT. Any attempt by Plaintiff to file an
Amended Complaint containing any of the claims dismissed by this opinion that are not
subject to the Heck bar will be summarily dismissed by the Court. Any attempt to file an
Amended Complaint containing the claims subject to the Heck bar that does not contain
allegations that the bar has been lifted will be summarily dismissed by the Court. Plaintiff
may be subject to sanction for filing such a frivolous action. The motion of Defendants
Dale Gero, Steve Jones, Michelle Mason, Robert Patterson, W illiam Scott, and John Stec
to set aside default and permit filing of an aswer, dkt. # 298, is hereby GRANTED. The
answer and crossclaim entered on the docket on September 28, 2018 is hereby accepted
for filing. Plaintiff’s motion for default judgment, dkt. # 300, is hereby DENIED.

IT IS SO ORDERED.
Dated:October 31, 2018

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