Reed et al v. Cushman et al

Filing 21

-CLERK TO FOLLOW UP-ORDER granting 16 Defendant Cashman's Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on 1/30/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES REED, SR., and
RICHARD REED,
Plaintiffs,

12-CV-6655T
DECISION
ORDER

v.

KURT CASHMAN, JAMES SHEPARD, POWELL TEVOR,
ALEX JIMENEZ, OFFICER MINERKA, and “KNOWN
AND UNKNOWN” LAW/POLICE AGENTS, STATE POLICE,
Defendants.
________________________________________
INTRODUCTION
Plaintiffs Charles Reed, Sr., and Richard Reed, bring this
action against defendants Kurt Cashman, (“Cashman”) a Parole Officer
with the New York State Division of Parole, and various police
officers of the City of Rochester, New York, claiming that the
defendants violated their civil rights by conducting an unlawful
search of their residence.

Specifically, Charles Reed, Sr., and

Richard Reed, the father and brother respectively of Charles Reed,
Jr., a parolee subject to the supervision of the New York State
Division of Parole, claim that Cashman and the other defendants
mistakenly entered and searched their residence when the defendants
intended to search Charles Reed, Jr.’s residence.
because

the

entrance

into

and

search

of

their

They claim that
residence

was

unauthorized and was conducted without a warrant, the search of

their residence was unlawful.

Only Charles Reed Jr.’s father and

brother are the plaintiffs in this action.

Charles Reed, Jr., is

not a party to this lawsuit.
Defendant Cashman now moves for summary judgment against the
plaintiffs on grounds that plaintiff Charles Reed, Sr., lacks
standing to bring this action because he does not reside at the
residence that was searched.

Defendant Cashman further contends

that plaintiff Richard Reed has failed to establish that he was
subjected to an unlawful search and seizure because the residence
that was searched was in fact the residence of Charles Reed Jr., and
therefore the defendants were authorized to enter and search the
premises where Charles Reed Jr., lived.

Finally, defendant Cashman

alleges that he is entitled to qualified immunity from liability for
his actions in conducting the home visit, search and seizure of
Charles Reed Jr.’s alleged property, on grounds that the search was
conducted in the course of Cashman’s carrying out of his lawful
duties as a parole officer in a lawful manner.
Plaintiffs’ oppose defendant Cashman’s motion claiming that
there are questions of facts as to whether or not Charles Reed, Sr.
lived at the residence that was searched.

Plaintiffs claim that

Charles Reed Sr., lived at the residence, and therefore is entitled
to assert a claim for an unlawful search.

Plaintiffs further argue

that Charles Reed, Jr., did not reside at the apartment that was
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searched, and that defendant has failed to establish that Charles
Reed Jr., resided at the apartment that was searched, and therefore,
summary judgment is inappropriate at this time.
For the reasons set forth below, I grant defendant’s motion for
summary judgment, and dismiss plaintiff’s claims against defendant
Cashman with prejudice.
BACKGROUND
Plaintiffs Charles Reed, Sr., and Richard Reed, are the father
and brother respectively of Charles Reed, Jr., a person who at the
time of the events at issue was on parole and subject to the
supervision of the New York State Division of Parole.

According to

the Complaint, on July 27, 2012, Defendant Kurt Cashman, who was
Charles Reed, Jr.’s parole officer, unlawfully conducted a search
of 532 Upper Falls Boulevard, in the City of Rochester, New York.
Plaintiffs allege that the search was unlawful because Cashman
searched Apartment 2 of 532 Upper Falls Boulevard (where Charles
Reed, Sr., and Richard Reed allegedly resided) instead of Apartment
1, where Charles Reed Jr., the parolee, lived.

It is undisputed

that 532 Upper Falls Boulevard is owned by Charles Reed Sr., and his
wife Lisa Reed, however there is no evidence that Charles Reed Sr.,
was present during the search.

According to the plaintiffs, the

defendants searched Apartment 2 without a warrant, and caused damage

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to the apartment, including damage to the door, drywall, and ceiling
tiles.
According to defendant Cashman, the search of Apartment 2 was
lawfully conducted in accordance with his supervisory obligations
as Charles Reed, Jr.’s parole officer.

According to Cashman,

Apartment 2 was Charles Reed Jr.’s lawful address, and Apartment 1
of

532

Upper

Falls

Boulevard

was

abandoned

and

uninhabited.

According to Cashman, when he and the other defendants came to
search 532 Upper Falls Boulevard, Richard Reed allowed them to enter
the residence.

The defendants then proceeded upstairs, and entered

a bedroom where Charles Reed, Jr., the parolee, was found in bed
with his girlfriend.
the room.

Charles Reed, Jr.’s pants and wallet were in

The defendants also found a loaded firearm concealed in

the room, and upon finding the weapon, took Charles Reed, Jr., into
custody for violation of his parole.
According to the defendants, the search of Apartment 2 was
lawful because Charles Reed Jr., was authorized by his parole
officer to live at Apartment 2 only, and was not authorized to live
in Apartment 1.

Additionally, defendant Cashman contends that

Charles Reed, Jr., did indeed live in Apartment 2, because that is
where he was found: in his bedroom, with his girlfriend, with
property belonging to him, and his identification.

Defendants

further contend that there is no evidence that plaintiff Charles
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Reed, Sr., lived at 532 Upper Falls Boulevard at the time of the
search, and that all evidence demonstrates that he is a longtime
resident, with his wife, of 14 Lavender Circle in the City of
Rochester, New York. Plaintiffs contend that Charles Reed, Jr., did
live in Apartment 1 of 532 Upper Falls Boulevard, and have submitted
a purported lease executed by him with his mother, the owner of the
property, indicating that he rented Apartment 1.
DISCUSSION
I.

Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant

is

entitled

to

judgment

as

a

matter

of

law."

When

considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought. Scott v. Harris, 550 U.S. 372, 380 (2007). If,
after considering the evidence in the light most favorable to the
nonmoving party, the court finds that no rational jury could find
in favor of that party, a grant of summary judgment is appropriate.
Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)).
In the instant case, defendant Cashman moves for summary
judgment on grounds that plaintiff Charles Reed, Sr., lacks standing
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to bring an action challenging the search of 532 Upper Falls
Boulevard because he is not a resident of 532 Upper Falls Boulevard,
and therefore has no expectation of privacy in being free from a
search of that residence.

Cashman further seeks summary judgment

on grounds that the search of 532 Upper Falls Boulevard was lawful
because

the

search

responsibilities

as

was
the

conducted
parole

pursuant

officer

of

to

his

Charles

supervisory
Reed,

Jr.

Finally, Cashman contends that he is entitled to qualified immunity
from prosecution or liability for conducting the search because he
had a good-faith reasonable belief that the search he was conducting
was lawful.
Because I find that Cashman is entitled to qualified immunity
from liability for his conduct, I grant his motion to dismiss the
Complaint.
II.

Standing of Plaintiff Charles Reed, Sr.

Defendant Cashman moves for summary judgment against defendant
Charles Reed, Sr., on grounds that because he is not a resident of
532 Upper Falls Boulevard, he has no standing to object to the
search of any apartment at that address.
“To have standing to object to an entry and search of a home
under the Fourth Amendment, a plaintiff must show that he had a
legitimate expectation of privacy” in the place searched. Mangino
v. Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 233-34 (E.D.N.Y.
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2010) on reconsideration in part, 814 F. Supp. 2d 242 (E.D.N.Y.
2011)(internal quotations omitted).

“The test to determine whether

a person can claim Fourth Amendment protection in a given place
depends

upon

whether

the

person

has

a

legitimate

subjective

expectation of privacy in that area that society is prepared to
accept as objectively reasonable.” United States v. Barrios–Moriera,
872 F.2d 12, 14 (2d Cir.1989).
In the instant case, I find that there is a question of fact
as to whether or not Charles Reed, Sr., lived at 532 Upper Falls
Boulevard at the time of the search. Although defendant Cashman has
submitted evidence demonstrating that Charles Reed, Sr., resides at
14 Lavender Circle with his wife Lisa, and not at 532 Upper Falls
Boulevard,

the

plaintiffs

have

submitted

several

documents,

including Charles Reed, Sr.’s driver’s license, indicating that
Charles Reed Sr.’s address is 532 Upper Falls Boulevard (with no
designation of whether he lived in any particular apartment at that
address).

Because there is conflicting evidence as to whether or

not Charles Reed, Sr., lived at 532 Upper Falls Boulevard, the court
can not, as a matter of law, hold that Charles Reed lacks standing
to object on Constitutional grounds to a search of that residence.
III. Defendant Cashman is Entitled to Qualified Immunity
Defendant Cashman contends that the search of 532 Upper Falls
Boulevard was lawful because Cashman was authorized to search that

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address pursuant to his supervision of Charles Reed, Jr., a parolee
under Cashman’s supervision.

Cashman argues that because Charles

Reed, Jr., is obligated pursuant to his conditions of parole to
allow the search of his residence and belongings, the search of 532
Upper Falls Boulevard was lawful.

Cashman further contends that

even if the search of Apartment 2 was not lawful, he may not be held
liable for any constitutional violation caused by the search because
he is entitled to qualified immunity from any such liability.
The
officials

doctrine

of

performing

qualified

immunity

discretionary

affords

functions

with

“government
a

qualified

immunity, shielding them from civil damages liability as long as
their actions could reasonably have been thought consistent with the
rights they are alleged to have violated.”
483 U.S. 635, 638 (1987).

Anderson v. Creighton,

Accordingly, where there is a reasonable

basis to conclude that an official’s conduct does not violate a
plaintiff’s constitutional rights, the official may not be held
liable for any constitutional violation that may have arisen from
that conduct.

“[A]n official is ... entitled to immunity were it

is objectively reasonable for him to believe the conduct [he engaged
in was] lawful. Weaver v. Brenner, 40 F.3d 527, 533 (citing O’Neill
v. Babylon, 986 F.2d 646, 649 (2nd Cir. 1993).
Where there are no material facts in dispute, the determination
of whether or not a defendant is entitled to qualified immunity is

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left to the court, which is required to consider the relevant facts
in the light most favorable to the plaintiff.

Oliveira v. Mayer,

23 F.3d 642, 649 (2d Cir. 1994). In determining whether or not a
defendant is entitled to qualified immunity from liability, the
court must first determine whether or not a constitutional right has
been violated.

If no right has been violated, the court need not

proceed with further inquiry because the plaintiff will be unable
able to establish any constitutional deprivation.

If the court

finds that a constitutional right has been violated, the court must
then determine if the right was “clearly established” at the time
the violation occurred. Because "[p]ublic officials are immune from
§ 1983 liability when their ‘conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known’" a plaintiff will be unable to state a
claim for a constitutional deprivation unless he can establish that
the right violated was clearly established. Weaver, 40 F.3d at 53233

(1994)

(quoting

Harlow

v.

Fitzgerald,

457

U.S.

800,

818

(1982)(emphasis added).
If the plaintiff can demonstrate that he was subjected to the
deprivation of a clearly established constitutional right, the court
must then determine whether or not the defendant responsible for the
constitutional deprivation is nevertheless entitled to immunity for
his actions.

As stated above, even where a defendant has violated

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a clearly established constitutional right, defendants such as
police or parole officers will be immune from liability if “it was
objectively reasonable for them to believe their acts did not
violate those rights."

Oliveira, 23 F.3d at 648.

In the instant case, viewing the facts in the light most
favorable to the plaintiffs, the plaintiffs have alleged that they
resided at Apartment 2 of 532 Upper Falls Boulevard, and that
defendant Cashman improperly entered and searched Apartment 2 when
he was authorized only to search Apartment 1 of that residence.
Assuming plaintiffs could establish these allegations,1 and assuming
that such allegations state a claim for the deprivation of a clearly
established constitutional right to be free from an unreasonable
search, I find that Cashman is nevertheless entitled to qualified
immunity

from

liability

on

grounds

that

it

was

objectively

reasonable for him to believe that he was searching the correct
apartment, that such a search was constitutional, and that such a
search was authorized by his duty as a parole officer to supervise
Charles Reed, Jr..

Cashman has declared under penalty of perjury

1

The court makes no finding of fact on the issue of whether or not Charles Reed,
Jr., lived in Apartment 1 or 2. Many of the facts in the record suggest that
Charles Reed, Jr., did in fact live in Apartment 2–including the fact that he was
found in bed with his girlfriend at that location, was authorized by his parole
officer to reside at Apartment 2 and not at Apartment 1, and according to
Cashman, Apartment 1 appeared to be abandoned at the time. Nevertheless, the
court assumes for the sake of argument and for purposes of this motion only that
Charles Reed, Jr., lived in Apartment 1, and plaintiffs lived in Apartment 2.

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that he authorized Charles Reed, Jr., to live in Apartment 2, and
not Apartment 1 of 532 Upper Falls Boulevard.

He further stated

that he had been to Charles Reed, Jr.’s apartment, and knew which
apartment Charles Reed, Jr., lived in.

When Cashman conducted his

search, he appeared at Charles Reed, Jr.’s Apartment, and conducted
a search of the Apartment that Cashman knew to be Charles Reed,
Jr.’s.

Upon conducting the search, Cashman did indeed find Charles

Reed, Jr., in what appeared to be his bedroom in Apartment 2.
Cashman also found Charles Reed, Jr.’s girlfriend in bed with him,
and personal property belonging to Charles Reed, Jr., in the bedroom
in Apartment 2.
objectively

All of these factors establish that it was

reasonable

for

Cashman

to

conduct

the

search

he

conducted on July 27, 2012 at 532 Upper Falls Boulevard, Apartment
2, and that it was objectively reasonable for him to believe that
his search did not violate the rights of Charles Reed, Jr., or Reed,
Jr.’s brother or father.

Because it was objectively reasonable for

Cashman to conduct the search of 532 Upper Falls Boulevard in the
manner in which he conducted it, he is entitled to qualified
immunity from liability.

Accordingly, his motion for summary

judgment against the plaintiffs is granted, and plaintiffs Complaint
is dismissed as to defendant Cashman.

Because no other defendant

has moved for summary judgment, the court makes no findings with
respect to any other defendant.

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CONCLUSION
For the reasons set forth above, I grant defendant Cashman’s
motion for summary judgment, and dismiss plaintiff’s Complaint
against defendant Cashman.

The action remains pending against

defendants James Shepard, Powell Tevor, Alex Jimenez, Officer
Minerka.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 30, 2014

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