Coon v. Bell et al
Filing
106
MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 9/11/2019. (Copy served via regular and certified upon plaintiff)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DONALD J. COON,
Plaintiff,
vs.
1:16-CV-291
(MAD/DJS)
KAREN BELL,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
FREEMAN, HOWARD LAW FIRM
441 East Allen Street
P.O. Box 1328
Hudson, New York 12534
Attorneys for Plaintiff
BRIAN P. HENCHY, ESQ.
MATTHEW J. GRIESEMER, ESQ.
MATTHEW GALLAGHER, ESQ.
MURPHY BURNS LLP
407 Albany Shaker Road
Loundonville, New York 12211
Attorneys for Defendant
THOMAS K. MURPHY, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Donald J. Coon brought this Section 1983 action, alleging that Defendant's
deceased husband, George Bell, illegally searched his home and destroyed his personal property
on August 3, 2015. See Dkt. No. 98 at 3. The Court held a short bench trial on August 26, 2019,
at which Plaintiff was the only witness to testify. See Transcript of Trial ("Tr.").
Having reviewed the parties' pre-trial submissions, the trial transcript, and the exhibits, the
Court makes the following findings of fact and conclusions of law.
II. FINDINGS OF FACT1
A.
The Parties and Jurisdiction
1.
Plaintiff is a current resident of 289 Fifth Avenue, Troy, New York. See Tr. at 3.
2.
From September 2012 until November 2015, Plaintiff lived at 103 County Route 71,
Cambridge, New York (hereinafter, the "Cambridge Property"). Id. at 4.
3.
George Bell was the Police Chief for the Villages of Cambridge, New York and
Greenwich, New York. Id. at 8.
4.
Defendant Karen Bell is the widow of George Bell. See Dkt. No. 71 at 1.
5.
Plaintiff sued Defendant pursuant to Title 42 of the United States Code, Section 1983,
alleging a violation of his Fourth Amendment right to be free from unreasonable search
and seizure. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
B.
Plaintiff's Home
6.
On May 5, 2015, the Cambridge Property had a fire, which destroyed the house where
Plaintiff had been living. Tr. at 5.
7.
After the fire, from May 6, 2015 until November 2015, Plaintiff lived in a shed on the
Cambridge Property. Id. The shed was metal, was approximately 8 feet by 10 feet wide,
and had two doors with an approximately 8-foot opening. Id. The shed did not have any
electricity, septic, or heat. Id. at 6.
C.
George Bell's Visit to the Property
This section constitutes the Court's Findings of Fact pursuant to Federal Rule of Civil
Procedure 52(a)(1). The Findings of Fact are drawn from Plaintiff's testimony at trial and the
parties' trial exhibits. In general, having considered all of the evidence, the Court found that
Plaintiff was not a credible witness. The Court explains its credibility assessment in full in
Section III(B) below.
1
2
8.
On August 3, 2015, Plaintiff was arrested at the Cambridge Property by George Bell for
violating an order of protection. Id. at 10-11, 64-67.
9.
George Bell brought Plaintiff to Judge Phillip Sica at the Cambridge Village court for his
arraignment. Id. at 11, 73.
10.
At the arraignment, Plaintiff informed Judge Sica that he had a doctor's appointment that
evening and was expecting a Medicab to pick him up at his home and bring him to
Adirondack Medical Center. Id. at 10, 12. Plaintiff testified that Medicab is a "taxi
service that does only medical runs for Social Security, Medicare, and sometimes the state
Medicaid." Id. at 13.
11.
Judge Sica sent George Bell to the Cambridge Property to wait for the Medicab to arrive.
Id. at 12-13.
12.
After a couple of hours, George Bell returned to the courthouse and informed Judge Sica
that he did not see a Medicab at the Cambridge Property.2 Id. at 13.
13.
Plaintiff did not give George Bell permission to search the shed on the Cambridge
Property. Id. at 14.
14.
Following his arraignment, Plaintiff was sent to Washington County Jail in Fort Edward,
New York. Id. at 15.
15.
Plaintiff bailed himself out of Washington County Jail early in the morning on September
4, 2015 and returned to the Cambridge Property. Id.
D.
Non-Credible Testimony
Plaintiff also testified that George Bell informed Judge Sica that a man from National
Grid came to the residence to read the meter. Id. at 74. Plaintiff testified that George Bell
complained about the National Grid employee being an "idiot, moron . . . [b]ecause the power had
been cut the day of the fire." Id. The Court does not find this testimony to be credible.
2
3
16.
Plaintiff testified that George Bell refused to shut or lock the shed doors when he was
arresting Plaintiff. Id. at 11. As discussed infra, this testimony is not credible.
17.
Plaintiff testified that George Bell illegally entered Plaintiff's property while he was
waiting for the Medicab on August 3, 2015, searched Plaintiff's shed, and destroyed
Plaintiff's personal property. Id. at 38-40. As discussed infra, this testimony is not
credible.
18.
Plaintiff testified that when he returned to his property on September 4, 2015, he saw that
the shed doors were propped open and the inside of the shed looked as though it had been
ransacked. Id. at 77-78. As discussed infra, this testimony is not credible.
19.
Plaintiff testified that he had hunter trail cameras set up on his property which showed
George Bell illegally searching his shed and destroying his property on August 3, 2015.
Id. at 27, 35-36. According to Plaintiff, the trail cameras were set up (1) on an oil barrel at
the end of Plaintiff's home that "looked right to the shed," (2) in a small dead apple tree,
and (3) on "the opposite side" to cover the land between the house "down through to the
main road." Id. at 28-29. Plaintiff testified that the camera on the oil tank "looked right to
the shed." Id. at 29. As discussed infra, this testimony is not credible.
III. CONCLUSIONS OF LAW
A.
Legal Standard
"In a bench trial such as this, it is the Court's job to weigh the evidence, assess credibility,
and rule on the facts as they are presented." Bahrami v. Ketabchi, No. 05-CV-3829, 2009 WL
513790, *9 (S.D.N.Y. Feb. 27, 2009) (quoting Johnson-McClean Techs. v. Millennium Info. Tech.
Grp., No. 02-CV-244, 2003 WL 192175, *8 (S.D.N.Y. Jan. 27, 2003)) (internal quotation marks
and alterations omitted); see also Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir. 1997). "The
4
Court [is] 'in the best position to evaluate [each] witness's demeanor and tone of voice as well as
other mannerisms that bear heavily on one's belief in what the witness says.'" Bahrami, 2009 WL
513790, at *9 (quoting Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 634 (2d
Cir. 1996)); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (noting
that "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so
heavily on the listener's understanding of and belief in what is said"). If the "evidence is equally
divided . . . 'the party with the burden of proof losses.'" Bahrami, 2009 WL 513790, at *9
(quoting U.S. v. Gigante, 39 F.3d 42, 47 (2d Cir. 1994)); see also Fulop v. Malev Hungarian
Airlines, 244 F. Supp. 2d 217, 223 (S.D.N.Y. 2003) (finding that "[t]he evidence on this issue is
substantially divided and, in the Court's assessment, does not tilt sufficiently to Plaintiff's case to
satisfy the preponderance standard").
B.
Plaintiff's Credibility
After careful assessing Plaintiff's testimony, including his demeanor, tone of voice, and
other mannerisms, the Court finds that Plaintiff was not a credible witness. First, Plaintiff's
testimony at trial repeatedly contradicted his sworn deposition testimony. For example, Plaintiff
testified at his deposition on July 24, 2018 that he still had photographs of the May 2015 fire from
one of the trail cameras, but at trial Plaintiff testified that he deleted all of the photographs "at the
end of [May 2015]." See Tr. at 70. When asked about the inconsistency, Plaintiff explained,
"[n]o, I don't remember that. I probably did not understand what you wanted." Id. Likewise, at
trial Plaintiff testified that he viewed those photographs a few days after the fire, but in his
deposition he testified that he first viewed the photographs in September 2015.3 Id. at 62.
Additionally, Plaintiff testified at trial that he slept on the porch of the burnt down house on
This testimony also contradicts Plaintiff's testimony that he had deleted the photographs
at the end of May 2015. See Tr. At 70.
3
5
September 4, 2015 (the night that he was released from jail), but Plaintiff testified at his
deposition that he slept in the shed that night. Id. at 79-80 (testifying at trial that he "couldn't get
into the shed. The stuff was piled. I misunderstood you . . . We talked a lot during the
deposition"). Such inconsistencies harmed Plaintiff's credibility with the Court.
Additionally, Plaintiff's trial testimony about lost evidence that supported his version of
the events from August 3, 2015 was not believable. Plaintiff claimed that his trail cameras took
several pictures of George Bell on August 3, 2015, but that the photographs had been "lost due to
theft." See Dkt. No. 98-1 at 1. The Court allowed Plaintiff to testify about the photographs after
concluding that "'[the fact finder] may very well find Plaintiff incredible and reject all of his
testimony, but questions of credibility are for the [the fact finder].'" See Dkt. No. 102 at 3
(quoting Dkt. No. 85 at 13-14). At trial, Plaintiff testified that the trail camera located on the oil
tank took pictures inside the shed, which showed "George walking in and then standing by the
building looking around, and then he went in the building, and then it took lots and lots and lots."
See Tr. at 29, 38. Plaintiff testified that the images depicted George "[d]estroying stuff, ripping
pictures out, throwing stuff, tipping stuff over, stomping it," including his "med bottles," "legal
document," "medical records," and food from his cooler. Id. at 39-40; see also id. at 38-39
(testifying that the photographs showed George "ripping pictures off the wall . . . jumping on the
box spring, which as my pictures I provided show, the box spring shattered, the frame, the
wood"); id. at 36 (testifying that the photographs showed George in the shed, "throwing stuff out
the cooler, some other odds, pair of my shoes he threw out. They landed out in the middle of the
yard. It snapped the picture of them flying").
In light of the other evidence in the record, as well as the Court's assessment of Plaintiff's
credibility at trial, the Court finds that Plaintiff's testimony about the contents of the photographs
6
is not credible. During his trial testimony, the Court pointed out to Plaintiff that still photographs
could not show movement, but Plaintiff insisted that the photos showed George at the door of the
shed "thr[owing] the cooler," so that "[t]he groceries went on the ground," and that "[s]ome other
odds and ends were on the ground, and you could see the shoes." Id. at 36. Additionally,
Plaintiff testified that he stored a memory card and some developed photographs from the trail
camera in a box in the shed, and that when he returned to his shed on December 7, 2016 to
retrieve the evidence, the box was gone. Id. at 46-48. The Court does not believe that the trail
cameras, which allegedly took still photographs and were located outside the shed, could take
clear photographs of someone destroying property inside the shed, especially if that destruction
included small items of property such as medicine bottles and food. Moreover, Plaintiff never
produced the photographs from the trail cameras or anything else to corroborate his testimony,
and the Court does not find Plaintiff's testimony that the photographs were stolen to be credible.
Finally, the photographs that were presented as trial exhibits were not credible pieces of
evidence. Plaintiff initially testified at trial that he took those photographs on September 4, 2015
using three disposable cameras, and that the photographs showed the shed as it looked on that
day, with a damaged box spring, empty banker's box, and "other stuff dumped." Id. at 41-44, 5455. Plaintiff testified that two of the disposable cameras were in the box that was stolen before
December 2016, and that he found the third camera in the shed shortly before trial. Id. at 56.
However, the photographs showed Plaintiff's family photographs on the walls of the shed, which
contradicted Plaintiff's testimony that George Bell had destroyed all of his family photographs on
August 3, 2015. Id. at 90-98. Plaintiff did not explain this apparent inconsistency, and seemed
confused on the stand as to when the photographs were actually taken. Id. at 91-98. Accordingly,
7
the Court finds that the photographs are not reliable evidence, and Plaintiff's testimony about the
photographs is not credible.
In sum, Plaintiff was not a credible witness. Plaintiff frequently changed his story, and
conveniently testified that he "misunderstood" the question when his answers departed from his
deposition testimony. See, e.g., id. at 62, 80, 98. Plaintiff's overall mannerisms also showed a
lack of credibility, and his testimony has not been corroborated by any other evidence. See
Bahrami, 2009 WL 513790, at *9; Anderson, 470 U.S. at 575. Therefore, the Court did not rely
on much of Plaintiff's testimony in determining the Findings of Fact.
C.
Fourth Amendment Claim
Plaintiff brings his Fourth Amendment claim under 42 U.S.C. § 1983, which Congress
established as "a cause of action for 'the deprivation of any rights, privileges, or immunities
secured by the Constitution and law' of the United States." German v. Fed. Home Loan Mortg.
Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quotation omitted). The Fourth Amendment
protects the "right of the people to be secure in their persons . . . against unreasonable searches
and seizures." U.S. Const. amend. IV. The Fourth Amendment also protects individuals from
unnecessary destruction of their property. See U.S. v. Ramirez, 523 U.S. 65, 71 (1998) (holding
that "[e]xcessive or unnecessary property destruction during a search may violate the Fourth
Amendment . . ."). "The touchstone of . . .[the] . . . analysis under the Fourth Amendment is
always the reasonableness in all the circumstances of the particular governmental invasion of a
citizen's personal security." Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (internal
quotation marks omitted). This reasonableness inquiry generally entails "assessing, on the one
hand, the degree to which [a search] intrudes upon an individual's privacy and, on the other, the
degree to which it is needed for the promotion of legitimate governmental interests." Virginia v.
8
Moore, 553 U.S. 164, 171 (2008). Plaintiff bears the burden of proving his Fourth Amendment
claim. See Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (holding that unlike in a
criminal action where the state has the burden to prove that a search was lawful, "[in civil cases]
the burden is on [the plaintiff] to establish that [a] search was unlawful"); Ruggiero v. Krzeminski,
928 F.2d 558, 563 (2d Cir. 1991) (holding that "the ultimate risk of nonpersuasion [in an
unreasonable search and seizure case] must remain squarely on the plaintiff in accordance with
established principles governing civil trials").
After carefully reviewing the parties' pre-trial submissions, the trial transcript and
exhibits, and the applicable law, the Court finds that Plaintiff failed to show that he was deprived
of his Fourth Amendment right to be free from unreasonable searches and seizures. As discussed
supra, Plaintiff was an unreliable witness who failed to present any credible evidence to support
his allegations against George Bell. At best, the evidence shows that Plaintiff was arrested by
George Bell on August 3, 2015, was placed in the custody of Washington County Jail, and was
released from jail on September 4, 2015. See Tr. at 10-15. Thus, the Court finds that Plaintiff did
not meet his burden to prove that a constitutional violation took place on August 3, 2015.
VI. CONCLUSION
For the above-stated reasons, the Court hereby
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
9
ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 11, 2019
Albany, New York
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?