Phelan v. Sullivan et al

Filing 54

MEMORANDUM-DECISION & ORDER that defendants' motion for summary judgment (Dkt. No. 40) is GRANTED; The complaint (Dkt. No. 1) is DISMISSED in its entirety with prejudice; and Plaintiff's cross-motion for summary judgment (Dkt. No. 46) is DENIED as moot. The Clerk of the Court is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 8/28/2012. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------KENNETH J. PHELAN,
Plaintiff,
-v-

5:10-CV-724

CHUCK SULLIVAN, N.Y.S.P. Senior
Investigator, individually and in his official
capacity; MICHAEL REINOHL,1 N.Y.S.P.
Investigator, individually and in his official
capacity; ERIC LEONARD, N.Y.S.P.
Investigator, individually and in his official
capacity; ANN KOSTECKI, N.Y.S.P.
Investigator, individually and in her official
capacity; JIM CONWAY, N.Y.S.P. Investigator,
individually and in his official capacity; NICK
GEORGEADIS, N.Y.S.P. Investigator,
individually and in his official capacity;
MATTHEW RENNERMAN, N.Y.S.P. officer
with the rank of Major, individually and in his
official capacity; and JOHN P. MELVILLE,
Acting Superintendent of N.Y.S. Police Dept.,
individually and in his official capacity (f/k/a
Harry Corbitt);
Defendants.
---------------------------------APPEARANCES:

OF COUNSEL:

KENNETH J. PHELAN
Plaintiff, Pro Se
09-A-1183
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541

1

According to this defendant's declaration, the proper spelling of his last nam e is "Reinoehl."
Therefore, this is the spelling that will be used.

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224
DAVID N. HURD
United States District Judge

ROGER W. KINSEY, ESQ.
Ass't Attorney General

MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff Kenneth J. Phelan ("plaintiff" or "Phelan") filed this civil rights action on June
21, 2010, asserting twenty-two causes of action pursuant to 42 U.S.C. § 1983 against
seventeen defendants. After reviewing the complaint and considering plaintiff's in forma
pauperis application, United States Magistrate Judge Andrew T. Baxter submitted a
Report–Recommendation urging dismissal of nine defendants and numerous causes of
action. Phelan v. Sullivan, 2010 WL 2948217, at *9 (N.D.N.Y. July 7, 2010). This
Report–Recommendation was adopted in its entirety. Phelan v. Sullivan, 2010 WL 2948188,
at *1 (N.D.N.Y. July 22, 2010) (noting that no objections to the Report–Recommendation had
been filed).
The remaining eight defendants include the following members of the New York State
Police ("NYSP"): Chuck Sullivan, Senior Investigator ("Sullivan"); Michael Reinoehl,
Investigator ("Reinoehl"); Eric Leonard, Investigator ("Leonard"); Ann Kostecki, Investigator
("Kostecki"); Jim Conway, Investigator ("Conway"); Nick Georgeadis, Investigator
("Georgeadis"); Matthew Rennerman, Major ("Rennerman"); and John P. Melville, Acting
Superintendent (collectively "defendants"). The parties apparently agree that the only
remaining causes of action are false arrest, excessive force, and illegal seizure of personal
property—all arising from Phelan's arrest and the seizure of his property on July 17, 2008.
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Indeed, these are the only three claims addressed in plaintiff's memorandum of law.
Defendants have moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Plaintiff opposes and has filed a cross-motion for summary judgment.
Defendants have responded. The motions were considered on submit.
II. FACTUAL BACKGROUND
Unless otherwise noted, the following pertinent facts are undisputed. On July 11,
2008, the New York State Governor's office forwarded a complaint to the NYSP. The
complaint had been submitted via email by a person named "Kevin Phelps," who alleged that
a Jane Quinsaats ("Jane") was in the United States illegally and requested an inquiry into her
immigration status. Reinoehl began an investigation and quickly learned that Jane had a
valid New York driver's license, a valid Social Security number, and was legally in the United
States. Reinoehl also learned that Jane had recently obtained an order of protection against
Kenneth Phelan as a result of a harassment charge in Albany.
Further investigation revealed that the email address used to send the complaint to
the Governor's office was linked to Phelan. On July 14, 2008, Reinoehl sent an email to this
email address requesting a conversation and, shortly thereafter, received a phone call from a
man claiming to be Kevin Phelps. Reinoehl recorded part of the conversation, in which the
man repeated the allegations against Jane.
Reinoehl then discovered a website maintained by an organization called "Citizens
Against Illegal Immigrants," which named Jane as an illegal resident of Albany using a stolen
identity. The president of this organization was listed as "Ken Butler," and a picture of him
appeared on the organization's website. Leonard, who was personally familiar with plaintiff,
identified the man in the picture as Phelan. On July 15, 2008, Reinoehl interviewed Jane,
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who reported that plaintiff had stalked her in the past and had recently sent her an email
threatening to have her deported. She further claimed that an unidentified person using an
unfamiliar email address had sent two threatening emails to her on July 1, 2008—the same
day she was granted an order of protection against plaintiff. Jane also identified Phelan as
both the voice on the "Kevin Phelps" recorded phone call and the man in the "Ken Butler"
picture.
In the meantime, Kostecki, Leonard, and Conway completed a criminal history check
on Phelan and reportedly learned that he had been arrested in Colonie, New York, in 2002.
The arrest report indicated that plaintiff had threatened someone with a dagger, kicked an
officer, and attempted to pull the service weapon from the holster of another officer. The
records also revealed that when Phelan was arrested in Colonie, he provided the police with
an assumed name of a deceased California man and the social security number of a New
Hampshire man. Plaintiff denies this criminal history.
On July 17, 2008, Reinoehl obtained a search warrant, signed by a City of Watervliet
Judge, for Phelan's residence. On that same date the warrant was executed by Reinoehl,
Leonard, Kostecki, Sullivan, Georgeadis, Conway, and members of the Watervliet Police
Department. Defendants acknowledge using force to open the door to plaintiff's apartment
but claim that they first identified themselves, advised that they had a search warrant, and
repeatedly asked plaintiff to open the door. Plaintiff alleges that defendants broke the door
down without any warning. Phelan was found sitting on the couch approximately six to ten
feet away from the front door. Plaintiff alleges that he was then forcibly thrown to the floor,
several officers put their feet and knees to his back, and his arms were painfully twisted

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behind his back. Plaintiff was handcuffed and advised of his Miranda rights.2
Reinoehl then interviewed Phelan, who admitted to emailing the complaint to the
Governor's office under the name Kevin Phelps. Defendants proceeded to search the home
and seized various items. Defendants assert that plaintiff consented to a further search of
his home, beyond the scope of the search warrant. Phelan disputes this and claims that he
only agreed to permit the seizure of his passport, some knives, and a hairbrush. Elsewhere
in his motion paperwork, however, Phelan denies that he authorized the search and seizure
of any additional places or items, and he maintains that his signature on a voluntary consent
to search form is a forgery.
Phelan was placed under arrest and transported to the Albany Police Department.
The following day he was arraigned on charges of criminal contempt of an order of
protection, aggravated harassment, and falsely reporting an incident. According to
defendants, a suppression hearing was conducted in December 2008, and an Albany County
Court judge ruled that plaintiff's statements and all items seized from his home were
admissible at trial. In January 2009 Phelan was found guilty of criminal contempt of an order
of protection, aggravated harassment, and stalking, and was sentenced to two to four years
in prison.3 See People v. Phelan, 82 A.D.3d 1279, 1280 (N.Y. App. Div. 3d Dep't), leave

2

The parties dispute whether two knives were located close to plaintiff when defendants entered the
apartm ent.
3

The parties also detail a separate incident involving Phelan's fiancee, who was reportedly
intercepted at the Albany Airport in late July 2008. An investigation ultim ately led to a second search of
plaintiff's hom e by defendants, pursuant to a search warrant. Crim inal charges were lodged against plaintiff
for allegedly forging his fiancee's im m igration paperwork and stealing the identity of a Verm ont police officer.
Plaintiff disputes several facts related to this incident and investigation, but acknowledges that he eventually
pleaded guilty to forgery. However, the three rem aining causes of action only pertain to the July 17, 2008,
arrest of Phelan and the seizure of his property on that date. Therefore, any facts related to the later incident
involving his fiancee's im m igration docum ents are irrelevant and will not be discussed further.
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denied, 17 N.Y.3d 799 (2011).
III. DISCUSSION
Plaintiff alleges that on July 17, 2008, defendants subjected him to a false arrest,
employed excessive force against him, and illegally seized his personal property.
A. Motion for Summary Judgment—Legal Standard
The entry of summary judgment is warranted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
2552 (1986) (citing Fed. R. Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247, 106 S. Ct. 2505, 2509–10 (1986). A fact is "material" for purposes of this inquiry if
it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248,
106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
When summary judgment is sought, the moving party bears the initial burden of
demonstrating that there is no genuine issue of material fact to be decided with respect to
any essential element of the claim. Id. at 250 n.4, 106 S. Ct. at 2511 n.4. The failure to
meet this burden warrants denial of the motion. Id. In the event this initial burden is met, the
opposing party must show, through affidavits or otherwise, that there is a material issue of
fact for trial. Id. at 250, 106 S. Ct. at 2511; Fed. R. Civ. P. 56(e).
When deciding a summary judgment motion, a court must resolve any ambiguities
and draw all inferences from the facts in a light most favorable to the nonmoving party.
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Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the record
reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor."
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see also
Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when
"there can be but one reasonable conclusion as to the verdict").
B. Defendants' Motion for Summary Judgment
1. False Arrest
Phelan claims defendants subjected him to a false arrest by placing him under arrest
on July 17, 2008, without an arrest warrant. Defendants argue that they had probable cause
to arrest plaintiff, who was ultimately convicted of the crimes for which he was arrested.
The elements of a § 1983 claim for false arrest "are substantially the same as the
elements of a false arrest claim under New York law." Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (internal quotation marks and citation omitted); see also DeMeo v.
Kean, 754 F. Supp. 2d 435, 443 (N.D.N.Y. 2010). Under New York law, the elements of a
false arrest claim 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." Singer, 63 F.3d at 118 (internal quotation marks
omitted). Contrary to plaintiff's assertion, "[t]he existence of probable cause to arrest
constitutes justification and is a complete defense to an action for false arrest." Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal quotation marks omitted).
Where, as here, "an arrest is not made pursuant to a judicial warrant, the defendant in
a false arrest case bears the burden of proving probable cause as an affirmative defense."
Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010). Probable cause to arrest exists
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when an officer has "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." Id. The existence of
probable cause is an objective inquiry that "is based upon whether the facts known by the
arresting officer at the time of the arrest objectively provided probable cause to arrest."
Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006). An arrest is lawful as long as there exists
sufficient information "to provide probable cause to believe that the person arrested has
committed any crime." Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir. 2007).
Further, a false arrest claim is defeated by the plaintiff's conviction for the offense for
which he was arrested. See Cameron v. Fogarty, 806 F.2d 380, 387 (2d Cir. 1986) ("Thus,
the common-law rule, equally applicable to actions asserting false arrest, false imprisonment,
or malicious prosecution, was and is that the plaintiff can under no circumstances recover if
he was convicted of the offense for which he was arrested."); Corbett v. Dwyer, 345 F. Supp.
2d 237, 241 (N.D.N.Y. 2004) (Kahn, J.) ("By pleading guilty to the charges, [plaintiff]
conceded that there was probable cause.").
Defendants have met their burden of proving that the arrest of Phelan on July 17,
2008, was supported by probable cause. Jane advised Reinoehl that plaintiff had recently
sent her an email threatening to have her deported. She further reportedly received
threatening emails from an unknown source on the same day she obtained an order of
protection against plaintiff. Jane and defendant Leonard both had personal familiarity with
Phelan and identified him as the man pictured and listed as the president of an organization
that named Jane as an illegal immigrant on its website. When defendants executed a valid
search warrant, plaintiff admitted to emailing a complaint, under a fictitious name, to the
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Governor's office accusing Jane of being an illegal immigrant and requesting that she be
arrested and deported. This complaint was sent after Jane had an order of protection
against him. This reasonably trustworthy information was sufficient to warrant a person of
reasonable caution in the belief that Phelan had violated the order of protection, harassed
Jane, and filed a false report. Moreover, it is undisputed that plaintiff was ultimately
convicted of the crimes for which he was arrested on July 17, 2008, and the conviction was
upheld on appeal. See Phelan, 82 A.D.3d at 1282.
Accordingly, defendants' motion for summary judgment will be granted as to the false
arrest cause of action.
2. Excessive Force
Phelan next alleges defendants used excessive force while detaining and arresting
him on July 17, 2008. Specifically, he alleges that immediately upon entering his apartment,
defendants tackled him, placed their feet and knees on his back, and forcibly twisted his
arms behind his back to handcuff him. Defendants argue that they used reasonable force
under the circumstances.
Where, as here, police officers are executing a valid search warrant, they have "the
limited authority to detain the occupants of the premises while a proper search is conducted."
Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595 (1981). The additional
intrusion of detaining an occupant is justified by three legitimate law enforcement interests:
"preventing flight in the event that incriminating evidence is found; minimizing the risk of harm
to the officers; and facilitating the orderly completion of the search." Muehler v. Mena, 544
U.S. 93, 98, 125 S. Ct. 1465, 1469 (2005) (internal quotation marks omitted). Inherent in this
authorization "is the authority to use reasonable force to effectuate the detention." Id. at
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98–99, 125 S. Ct. at 1470.
Police officers' use of force violates the Fourth Amendment "if it is objectively
unreasonable 'in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.'" Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.
2004) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989)). When
making this reasonableness determination, courts are to consider "the facts and
circumstances of each particular case, including the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396,
109 S. Ct. at 1872. An unreasonable use of force violates the Fourth Amendment even if it
does not result in "permanent or severe" injury. Robison v. Via, 821 F.2d 913, 924 (2d Cir.
1987). However, the lack of injury or medical treatment may weigh on the mind of the fact
finder when determining the reasonableness of the force applied. Id. Indeed, a "de minimis
use of force will rarely suffice to state a Constitutional claim." Romano v. Howarth, 998 F.2d
101, 105 (2d Cir. 1993).
Viewing the facts in the light most favorable to Phelan, defendants broke down the
door to his apartment without warning, tackled him to the ground, placed their feet and knees
on his back, twisted his arms behind his back, and handcuffed him. Plaintiff claims that he
never attempted to flee, denies that any weapons were located within his reach,4 and
disputes defendants' assertion that he has a history of violence toward arresting police
officers. However, it is undisputed that the officers were executing a valid search warrant of
4

However, Reinoehl's July 31, 2008, police m em orandum indicates that plaintiff adm itted to keeping
a knife "in the bedroom , a few in the front room and m y swords in the com puter room ." Reinoehl Decl., Ex. A,
7 (The pagination corresponds to the page num bers as assigned on CM/ECF.).
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plaintiff's home. They therefore had the inherent authority to detain him while they searched
the premises. There is nothing in the record from which to infer that defendants used an
unreasonable amount of force to effectuate this detention. The force used was instead de
minimis. Moreover, plaintiff does not allege that he was injured in any way, was detained for
an excessive period of time, or required any medical treatment whatsoever. In short, the
force used by defendants to detain and arrest plaintiff on July 17, 2008, was objectively
reasonable, and no reasonable finder of fact could conclude otherwise. See Paul v. City of
Rochester, 452 F. Supp. 2d 223, 227 (W.D.N.Y. 2006) (holding, as a matter of law, that
defendant officers executing a search warrant did not use unreasonable force when they
ordered an innocent bystander to lay on his stomach, handcuffed him, and stepped on his
knee and back, causing injuries).
Accordingly, defendants' motion for summary judgment will be granted as to the
excessive force cause of action.
3. Illegal Seizure of Property
Finally, plaintiff alleges defendants illegally seized personal property that was not
listed on the search warrant.5 He also alleges that his signature on a voluntary consent form,
which provided the officers with permission to search the entire premises for additional
specified items, is a forgery. Plaintiff does not challenge the validity of the search warrant.
Defendants argue that any cause of action challenging the seizure of items pursuant to the
search warrant on July 17, 2008, is barred by the decision of the Albany County Court judge

5
Plaintiff also attem pted to fram e this claim as a deprivation of due process. However, that cause of
action was addressed, and dism issed, in Judge Baxter's Report–Recom m endation. See Phelan, 2010 W L
2948217, at *6–7 (due process claim s precluded because adequate post-deprivation rem edies were available
to plaintiff, including a m otion to suppress in the crim inal proceedings and a civil action for replevin).

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following a suppression hearing that occurred during the criminal proceedings.
While it is unclear which statements and evidence plaintiff specifically sought to have
suppressed prior to his criminal trial in state court, it is undisputed that a suppression hearing
was held and the judge denied plaintiff's motion.6 Therefore, plaintiff already had a full and
fair opportunity to litigate any claim that his personal property was seized in violation of the
Fourth Amendment. He cannot now re-litigate such claims. See Hayes v. Cnty. of Sullivan,
__ F. Supp. 2d __, 2012 WL 1129373, at *17 (S.D.N.Y. 2012) (collecting cases that have
held a previous suppression hearing in state court bars a subsequent § 1983 unlawful search
claim on collateral estoppel grounds, and also precludes any similar claim regarding
evidence plaintiff could have sought to suppress on res judicata grounds).
Accordingly, defendants' motion for summary judgment will be granted as to the illegal
seizure of property cause of action.
C. Plaintiff's Cross-Motion for Summary Judgment
As defendants' motion for summary judgment will be granted in its entirety and the
complaint will be dismissed with prejudice, plaintiff's cross-motion for summary judgment will
be denied as moot.
IV. CONCLUSION
The arrest of Phelan on July 17, 2008, was supported by probable cause, and he was
ultimately convicted of the crimes for which he was arrested on that date. His conviction was

6

Although the parties do not provide m uch detail on the pretrial hearings, it appears that at least a
Huntley and W ade hearing was held. See Phelan, 82 A.D.3d at 1282. In denying plaintiff's claim that he
received ineffective assistance because his trial counsel withdrew his suppression m otions, the Appellate
Division noted, "the evidence adduced at the Huntley and W ade hearing fails to reveal any likelihood of
success of a challenge to the adm issibility of his statem ents to police or the evidence seized from his
residence pursuant to the search warrant." Id. The court further noted that "the record reveals no colorable
factual or legal basis for suppression." Id.
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upheld on appeal. Defendants used an objectively reasonable amount of force to detain
plaintiff while they executed a valid search warrant of his residence. Finally, plaintiff had a
full and fair opportunity during the criminal proceedings in state court to litigate any claim that
defendants violated the Fourth Amendment by seizing personal property that was outside the
scope of the search warrant.
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment (Dkt. No. 40) is GRANTED;
2. The complaint (Dkt. No. 1) is DISMISSED in its entirety with prejudice; and
3. Plaintiff's cross-motion for summary judgment (Dkt. No. 46) is DENIED as moot.
IT IS SO ORDERED.
The Clerk of the Court is directed to enter judgment accordingly.

Dated: August 28, 2012
Utica, New York.

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