Toliver v. Sanchez Perri et al
Filing
139
ORDER ADOPTING REPORT AND RECOMMENDATIONS re 130 Report and Recommendations. Having reviewed the record de novo as to the issues raised in Plaintiff's objections and finding Plaintiff's objections without merit, this Court adopts Magistr ate Judge Francis's R&R in its entirety. The Court grants Defendants' motion for summary judgment. The Clerk of Court is directed to enter judgment and close this case. Pursuant to 28 U.S.C § 1915(a), the Court finds that any appeal from this order would not be taken in good faith. (Signed by Judge Paul A. Crotty on 3/24/2014) Copies Mailed By Chambers. (cd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------)(
MICHEL TOLIVER,
Plaintiff,
10 Civ. 3165 (PAC) (JCF)
-against-
ORDER ADOPTING REPORT &
RECOMMENDATION
THE CITY OF NEW YORK, THE STATE OF
NEW YORK, THE NEW YORK CITY
POLICE DEPT. HDQ, S.O.M.U. NEW YORK
CITY POLICE DEPT., DIVISION OF
CRIMINAL JUSTICE SERVICES, D.C.J.S.
MANAGER PAMELA GAITOR, D.C.J.S.
DIRECTOR DONNA CALL,
COMMISSIONER OF N.Y.P.D., SOMU
DETECTIVES OLMO, SANCHEZ,
NEWKIRK, PERRI, FOUNTOULAKIS,
SERGEANT JAMES DONOHUE, WENDY
SANTIAGO, SERGEANT HERZBERG,
NEW YORK STATE DIVISION OF
PAROLE, POLICE OFFICER ELLEN
SEELIGER Shield #8931, 20th PRECINCT
N.Y.P.D., DETECTIVE JIMMY ANGOTTA,
SOMU OFFICE NEW YORK CITY,
Defendants.
------------------------------------------------------------)(
HONORABLE PAUL A. CROTTY, United States District Judge:
Pro se Plaintiff Michel Toliver ("Plaintiff") brings this 42 U.S.C. § 1983 action against
Detectives Jose Olmo and Carlos Sanchez (the "Defendants") of the New York City Police
Department ("NYPD") Sex Offender Monitoring Unit ("SOMU"), alleging that on March 18,
2009, he was subject to a false arrest for failing to register as a sex offender in violation of the
Sex Offender Registration Act, N.Y. Corr. Law § 168 et seq. ("SORA").' Toliver alleges
Defendants arrested him without a warrant or probable cause.
I
All other claims were dismissed pursuant to an order of this Court dated October 18, 20 II. (Dkt. 61.)
1
On June 21 , 2013, Defendants moved for summary judgment. Magistrate Judge Francis
granted Plaintiff two extensions of time to submit an opposition brief, but Plaintiff failed to
submit one. On November 14, 20l3, Magistrate Judge Francis held a hearing on Defendants '
motion for summary judgment to clarify whether the information Defendants relied upon to
arrest Plaintiff established probable cause. On December l3, 20l3, Magistrate Judge Francis
issued a Report & Recommendation ("R&R") recommending the Court grant Defendants'
motion.
Plaintiff objects to Magistrate Judge Francis's R&R: (1) Plaintiff was prejudiced with
respect to the November 14, 2013 hearing because he did not receive notice until one day prior
and did not have enough time to prepare for cross-examination of witnesses; (2) the facts in the
record do not support a finding of probable cause; and (3) the Defendants have not offered any
evidence of communications between each other sufficient to show that their collective
knowledge supported a finding of probable cause. Defendants urge the Court to adopt
Magistrate Judge Francis's R&R.
For the reasons that follow, the Court adopts Magistrate Judge Francis ' s R&R in its
entirety. Accordingly, the Court grants Defendants' motion for summary judgment.
2
DISCUSSION 2
I. Legal Standards
A. Review of Magistrate Judge Francis's R&R
In reviewing a report and recommendation, a court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1 )(C). Where a party makes a timely written objection, the district court must review the
contested issues de novo. See Arista Records LLC v. Doe, 604 F.3d 1l0, 116 (2d Cir. 2010)
("any part ofthe magistrate judge's recommendation that has been properly objected to must be
reviewed by the district judge de novo."); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513
(S.D.N.Y. 1997). Nonetheless, where a party "makes only conclusory or general objections, or
simply reiterates the original arguments, the Court will review the Report strictly for clear error."
Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023 (LTS) (JCF), 2008 WL 2811816,
at *1 (S.D.N.Y. July 21,2008). "[E]ven a pro se party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a 'second bite at the apple' by simply relitigating a prior
argument." Id. (citation omitted)
B. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[s]ummary judgment is
appropriate when, construing the evidence in the light most favorable to the non-moving party,
'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.'" Rojas v. Roman Catholic Diocese ofRochester, 660 F.3d 98,104 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 56(a)). The moving party bears the initial burden of producing evidence
2 For the facts of this case. see Magistrate Judge Francis's R&R. For the sake of consistency, this opinion uses the
same notation for citations to the record as the R&R.
3
on each material element of its claim demonstrating that it is entitled to relief. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made an initial showing that no
genuine dispute of material fact remains, the nonmoving party must present specific evidence in
support of its contention that there is a genuine dispute as to material facts. Fed. R. Civ. P. 56(c).
Conclusory or speculative allegations, however, are insufficient. See Niagara Mohawk Power
CO/po v. Jones Chern., Inc., 315 F.3d 171, 175 (2d Cir. 2003). The Court must resolve all
ambiguities and draw all factual inferences in favor of the nonmovant, but "only if there is a
'genuine' dispute as to those facts. " Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must
"' read [pro se plaintiffs] supporting papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.'" Perry v. Stephens, 659 F. Supp. 2d 577 (S.D.N.Y. 2009) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994».
II. Analysis
The Court has reviewed the record, including the parties' submissions, the R&R, and
Plaintiffs objections.) Because Plaintiff objects to specific factual findings in the R&R, the
Court reviews these issues de novo.
A. The November 14, 2013 Hearing
Plaintiff argues that Magistrate Judge Francis should not have relied on testimony from
the November 14,2013 hearing in his R&R, since Plaintiff allegedly did not receive notice of the
hearing until one day prior, and Defendants were aided by the "Corporation Counsel with
unlimited sources and resources" while Plaintiff is pro se and incarcerated. (PI. Obj. Ltr. at 20.)
There is no reason to reject the R&R on this basis. The docket reflects that on October 31, 2014,
Magistrate Judge Francis scheduled the hearing, and Chambers mailed copies of the scheduling
In lig ht of Plaintiffs pro se status and the fact that Plaintiff notified the Court, well in advance of the deadline, that
his objections were still in the mail room (Dkt. 132), the Court has considered Plaintiff s objections notwithstanding
their untimely filing.
J
4
order to Plaintiff on November I, 2014. (Dkt. 127.) On November 4, 2014, Magistrate Judge
Francis issued an order to produce Plaintifffor the hearing. (Dkt. 12S.) Plaintiff did not raise any
objection to the November 14 date for the hearing upon receiving notice, nor did he request that
the hearing be rescheduled. The transcript reflects that Plaintiff participated in the hearing and
was able to cross-examine the witness, Detective Sanchez. Plaintiff never raised any prior
objection to the hearing on the record. Furthermore, as discussed below, the evidence elicited at
the hearing is confirmed by affidavits and other evidence showing Defendants' probable cause to
arrest Plaintiff.
B. Probable Cause Finding
Plaintiff objects to facts relating to the Defendants' investigation of Plaintiff leading up to
his arrest for failing to register as a sex offender. Plaintiffs objections do not warrant rejecting
the conclusions in the R&R.
The record clearly establishes that Detective Sanchez had probable cause to arrest
Plaintiff based on Sanchez's personal involvement in his case. Plaintiff does not specifically
dispute that Detective Sanchez (I) knew that Plaintifffailed to appear for his re-registration
meeting on July 14, 200S (Tr. at 12- 13 ; see also Def.'s 56.1 Stmt.
~
19); (2) went to S94
Riverside Drive where he discovered Plaintiff was currently residing (Sanchez Aff.,
~~
23, 2S;
Tr. 19- 20,22-23); and (3) knew that Plaintiff never advised SOMU of this new address as
required by SORA (Sanchez Aff.,
~~
21 , 22; Tr. at 19). Plaintiff instead argues that Detective
Sanchez's knowledge of Plaintiffs case is unreliable because Toliver's case file is not in the
record, and entries may have been incorrect. This assertion does not raise a genuine dispute.
Plaintiff's SOMU case file is in the record. (See Silverberg Dec!. Ex. F.) The case file clearly
indicates that Plaintifffailed to appear on July 14, 200S for his re-registration meeting (Id. at 3),
5
and Sanchez knew he failed to appear (Tr. at 12-13). Sanchez also knew that Toliver' s "current"
address on file with SOMU was 545 West 146'h Street, New York, NY (Sanchez Aff., 18; Tr. at
13-14), and the 894 Riverside Drive address was not on file. (Defs Rule 56.1 Stm!. '1J 21; Tr. 17,
19-20).
Taken together, the facts that Detective Sanchez knew from his own personal
involvement in the investigation provided probable cause to arrest Plaintifffor failing to register
as a sex offender in violation of SORA.4
C. Collective Knowledge Doctrine
As noted above, Detective Sanchez had probable cause to arrest Plaintiff for violating
SORA based on his own personal involvement in the case. Reliance on the collective knowledge
doctrine is therefore unnecessary, and facts about communications between the officers are
immaterial. Issues pertaining to Detective Olmo's knowledge are also immaterial, since
Detectives Sanchez and Olmo were together when they found Toliver and brought him to the
SOMU office (Sanchez Aff. '1J 28), and Detective Olmo was not the arresting officer; Sanchez
was (Tr. 24).
Plaintiffs remaining objections relate to the information Detective Sanchez gained through collective knowledge.
Under the collective knowledge doctrine, in arresting Toliver Detective Sanchez was entitled to rely on the
knowledge of other officials cooperating in the same investigation. See Savino v. City a/New York, 331 F.3d 63, 74
(2d Cir. 2003). The record indicates that Detective Sanchez was aware of other officers' unsuccessful efforts to
locate Plaintiff, such as running database searches (Sanchez Aff. ~'11 15 , 18), visiting his last known address of545
West 146'h Street and obtaining a resident's statement that Plaintiff did not reside there (Jd. '11 18; Tr. at 13-14); and
sending an address verification form that was returned as " undeliverable" (Sanchez Aff., 27). Plaintiffs disputes
as to these facts are not genuine because they are conclusory allegations, unsupported by the record. The disputed
facts are also immaterial because Detective Sanchez's personal involvement alone was sufficient to establish
probable cause.
4
6
D. State Law Claims
Toliver does not object to Magistrate Judge Francis' s recommendation that Toliver's
supplemental state law claims be dismissed. Finding no clear error, the Court adopts this
recommendation.
CONCLUSION
Having reviewed the record de novo as to the issues raised in Plaintiff's objections and
finding Plaintiff's objections without merit, this Court adopts Magistrate Judge Francis' s R&R in
its entirety. The Court grants Defendants' motion for summary judgment. The Clerk of Court is
directed to enter judgment and close this case. Pursuant to 28 U.S.C § 1915(a), the Court finds
that any appeal from this order would not be taken in good faith .
Dated: New York, New York
March 24, 2014
SO ORDERED
Pf!:.~
United States District Judge
Copies Mailed To:
Michel Toliver
10-A-4565
Five Points Correctional Facility
State Route 96, P.O. Box 119
Romulus, NY 14541
7
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?