Reed et al v. Cushman et al
Filing
31
-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part in favor of Alex Jimenez and denying in part without prejudice with leave to refile as to James Sheppard, Trevor Powell, and Thomas Minurka 27 Motion for Summary Judgment. Any refiled summa ry judgment motion by defendants Sheppard, Minurka, and Powell is due within thirty (30) days of this Decision and Order. The Court will issue a further scheduling order, if necessary. The Clerk of the Court is directed to terminate Alex Jimenez as a party to this action, to replace Officer Minerka with Thomas Minurka, and to replace Powell Tevor with Trevor Powell. Signed by Hon. Michael A. Telesca on 5/27/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES REED, SR., and RICHARD REED,
Plaintiffs,
No. 6:12-CV-6655T
DECISION AND ORDER
vs.
JAMES M. SHEPPARD, Chief of Police;
POWELL TEVOR, Inv. Roch City Police
Department; ALEX JIMENEZ, Police
Officer, RPD; OFFICER MINERKA, RPD; and
“KNOWN AND UNKNOWN” LAW/POLICE AGENTS,
STATE POLICE,
Defendants.
INTRODUCTION
Charles Reed, Sr. (“Mr. Reed”) and Richard Reed (“Richard”)
(collectively,
“Plaintiffs”)
are
the
father
and
brother,
respectively, of Charles Reed, Jr. (“Parolee Reed”), 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 (“the Parole
Division”). Plaintiffs, proceeding pro se, instituted this action
pursuant to 42 U.S.C. § 1981 against Kurt Cashman (“Cashman”),1 a
parole officer with the Parole Division, who was charged with the
supervision of Parolee Reed, and various named and unnamed law
enforcement officers employed by the City of Rochester Police
Department and the New York State Police. Plaintiffs claim that
1
There are discrepancies between the spelling of the names of some of the
defendants in the caption and the defendants’ actual names. The caption reflects
the names as set forth in Plaintiffs’ pleadings. Where the Court has been
provided with the correct spelling of individual defendants’ names, the Court has
used these in the Decision and Order.
their civil rights were violated in connection with a search of
their residence conducted by Cashman and the other defendants in the
course of Cashman conducting a routine visit to what he believed was
Parolee Reed’s residence. Cashman moved for summary judgment, and
this Court granted his request in a Decision and Order dated
January 30,
2014
(Dkt #21), finding that he was entitled to
qualified immunity. Cashman has been dismissed from the action.
James Sheppard (“Sheppard”), Trevor Powell (“Powell”), Alex
Jimenez (“Jimenez”), and Thomas Minurka (“Minurka”) of the Rochester
Police Department (collectively, “the RPD Defendants”) now have
moved for summary judgment on the basis of qualified immunity.
Plaintiffs
opposed
the
RPD
Defendants’
motion,
and
the
RPD
Defendants’ attorney filed a reply declaration. For the reasons set
forth below, the RPD Defendants’ motion is granted in part and
denied in part without prejudice, with leave to refile.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On the evening of July 27, 2012, Cashman, accompanied by a
group of uniformed RPD officers, conducted a visit to what Cashman
believed was Parolee Reed’s residence. At that time, Parolee Reed
had been approved by the Parole Division to live in an apartment on
the south side of the second floor of a house located at 532 Upper
Falls Boulevard in the city of Rochester, New York.2 Plaintiffs
2
Although Mr. Reed owns 532 Upper Falls Boulevard with his wife, Lisa Reed,
there is no evidence that Mr. Reed or his wife were present during the incident
at issue in this matter.
2
refer to the south-side, second-floor apartment as “Apartment 2.”
Apartment 2 was the only apartment in which Parolee Reed was
permitted to reside. At the time of the incident at issue here,
Richard, Parolee Reed’s brother, also lived at 532 Upper Falls
Boulevard in Apartment 2. 532 Upper Falls Boulevard has a second
apartment, on the north side of the building, which Plaintiffs refer
to as “Apartment 1.” However, Parolee Reed was not authorized to
live in Apartment 1.
On May 31, 2012, in Cashman’s capacity as Parolee Reed’s parole
officer,
he
visited
Parolee
Reed’s
residence
at
Apartment
2,
532 Upper Falls Boulevard. At that time, Cashman noticed that all
the other doors to the building—including the door to the north-side
apartment (i.e., Apartment 1)—were blocked, and most of the building
appeared to be boarded up and uninhabited.
On June 16, 2012, Cashman met with Parolee Reed at his office
and discussed Parolee Reed’s living situation. Although Parolee Reed
indicated a desire to move in with his girlfriend, he did not
mention moving out of the south-side apartment into the north-side
apartment at 532 Upper Falls Boulevard. On July 10, 2012, Cashman
again met with Parolee Reed at his office and discussed Parolee
Reed’s living situation. Parolee Reed did not mention moving out of
the south-side apartment into the north-side apartment.
On July 27, 2012, Cashman, acting upon confidential information
that Parolee Reed had violated the terms of his parole, conducted
3
a home visit of Parolee Reed’s approved residence. According to
Cashman, several RPD officers accompanied him on the home visit in
order to provide assistance, if necessary, with containing Parolee
Reed and whoever else might be at the residence.
Upon their arrival at 532 Upper Falls Boulevard, Cashman was
met by Richard, who allowed him to enter the building and provided
verbal confirmation that he and Parolee Reed lived together in
Apartment 2. Parolee Reed was present in a bedroom in Apartment 2.
His girlfriend was in bed with him, and some of his personal
effects,
including
his
pants
and
his
wallet
containing
his
identification, were nearby. Parolee Reed was in a state of undress
and apparently had just awakened.
The RPD Defendants took Parolee Reed and his girlfriend into
another room while Cashman conducted a search of the bedroom. Hidden
inside a flower pot, Cashman discovered a loaded handgun, which he
turned over to the RPD Defendants for processing. Parolee Reed and
his girlfriend both were arrested, and, according to Cashman, the
RPD Defendants then conducted a search of the residence.
Mr.
Reed and Richard subsequently instituted this action
seeking money damages based on the warrantless search of the bedroom
in Apartment 2 where Parolee Reed was found on July 27, 2012.
Cashman
moved
for
summary
judgment
arguing,
inter
alia,
that
Plaintiffs lacked standing and that he was entitled to qualified
immunity. Cashman argued that there was no evidence that Mr. Reed
4
lived at 532 Upper Falls Boulevard at the time of the search, and
that all evidence demonstrated that he is a longtime resident, with
Mrs. Reed, of 14 Lavender Circle in the City of Rochester, New York.
Plaintiffs contend that Parolee Reed did live in Apartment 1 at
532 Upper Falls Boulevard, and submitted a purported lease executed
by him and Mrs. Reed, who co-owned the property with Mr. Reed,
indicating that he rented Apartment 1.
In a Decision and Order dated January 30, 2014, the Court found
that there was a question of fact as to whether Mr. Reed lived at
532 Upper Falls Boulevard at the time of the search. This finding
was based on several documents submitted by Plaintiffs, including
Mr. Reed’s driver’s license, which gave Mr. Reed’s permanent address
as 532 Upper Falls Boulevard. Accordingly, the Court declined to
hold that Mr. Reed lacked constitutional standing. However, the
Court agreed with Cashman that he was entitled to qualified immunity
because it was objectively reasonable for him to believe the conduct
he engaged in on July 27, 2012, was lawful. Cashman was dismissed
as a defendant in this action.
The RPD Defendants now move for summary judgment on the basis
that
they
also
are
entitled
to
qualified
immunity.
The
RPD
Defendants argue that the same factors relied on by the Court in
determining that it was objectively reasonable for Cashman, the
parole officer, to believe that his conduct on July 27, 2012, was
lawful, apply to them, because Cashman enlisted their aid in
5
effecting the search of the premises. However, none of the RPD
Defendants submitted any sworn declarations or affidavits in support
of this motion. Plaintiffs filed papers in opposition, and the RPD
Defendants’ attorney filed a reply declaration.
GENERAL LEGAL PRINCIPLES
I.
Summary Judgment
“At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
380 (2007) (citing FED. R. CIV. P. 56(c). “A party asserting that a
fact
cannot
be
or
is
genuinely
disputed
must
support
the
assertion[,]” FED. R. CIV. P. 56(c)(1) by one or more of the
following means:
citing to particular parts of materials in the record,
including . . . affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
. . .
showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
FED. R. CIV. P. 56(c)(1)(A)-(B).
The Supreme Court has emphasized that “[w]hen the moving party
has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the
material facts . . . . Where the record taken as a whole could not
6
lead a rational trier of fact to find for the nonmoving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (footnote
omitted); accord, e.g., Scott, 550 U.S. at 380.
II.
Qualified Immunity
“‘Under the doctrine of qualified
official
performing
discretionary
immunity, a government
functions
is
shielded
from
liability for civil damages if his conduct did not violate clearly
established rights or if it would have been objectively reasonable
for the official to believe his conduct did not violate plaintiff’s
rights.’” Reuland v. Hynes, 460 F.3d 409, 419 (2d Cir. 2006)
(quoting Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir.
2003); emphasis supplied). “If there is a material question of fact
as to the relevant surrounding circumstances, the question of
objective reasonableness is for the jury[,]” Green v. City of N.Y.,
465 F.3d 65, 83 (2d Cir. 2006) (citation omitted), but “[i]f there
is no material question of fact, the court decides the qualified
immunity issue as a matter of law.” Id. (citation omitted).
DISCUSSION
I.
Defendants Sheppard, Powell, and Minurka
The Second Circuit has explained that “[q]ualified immunity is
an
affirmative
defense
that
must
be
pled
and
proved
by
the
defendant.” Schecter v. Comptroller of City of N.Y., 79 F.3d 265,
270 (2d Cir. 1996) (citing Blissett v. Coughlin, 66 F.3d 531, 538
7
(2d Cir. 1995); other citation omitted); see also Lore v. City of
Syracuse, 670 F.3d 127, 149 (2d Cir. 2012). Therefore, the burden
of proof rests on the individual RPD Defendants asserting the
defense to demonstrate that it was objectively reasonable for each
of them to believe that their conduct on July 27, 2012, did not
violate any federal constitutional right possessed by Plaintiffs.
Field Day, LLC v. County of Suffolk, 799 F. Supp.2d 205, 213
(E.D.N.Y. 2011) (citing Green, 465 F.3d at 83). Here, neither
Sheppard, nor Minurka, nor Powell submitted a sworn statement such
as a declaration or affidavit in support of their motion for summary
judgment. Jimenez, who did submit a declaration, purports to make
it “on behalf of former Chief James Sheppard, and on behalf of
Trevor Powell and Thomas Minurka.” Declaration of Alex Jimenez
(“Jimenez Decl.”), ¶ 1 (Dkt #27-2). This is insufficient to carry
Sheppard’s, Powell’s or Minurka’s burden of proof. See Field Day,
LLC, 799 F. Supp.2d at 213-14 (denying summary judgment on qualified
immunity grounds to county defendants who merely “describe[d] their
activities in general terms collectively, supplemented by argument”
and a “declaration [containing] . . . general information, regarding
‘many’ of the Individual County Defendants”; these pleadings were
“simply insufficient to determine which individuals, if any, are
entitled to qualified immunity”).
In sum, the requests by Sheppard, Minurka, and Powell for
summary judgment on the basis of qualified immunity
8
are facially
and substantively deficient because these individuals have failed
to come forward with evidence in admissible form to demonstrate that
it was objectively reasonable for them to believe that their conduct
did not violate any of Plaintiffs’ constitutional rights. Their
conclusory motion for summary judgment on this ground is denied.
E.g., Field Day, LLC, 799 F. Supp.2d
at 214 (citing Shechter v.
Comptroller of the City of New York, 79 F.3d 265, 270 (2d Cir.
1996); Crawford v. Coughlin, No. 94-CV-494H, 1996 WL 227864, at *4
(W.D.N.Y. June 28, 2011)).
II.
Defendant Jimenez
The Court turns now to Jimenez, who nominally attempted to
comply
with
Rule
56(c)(1)
by
submitting
a
sworn
declaration
(Dkt #27-2). In determining whether Jiminez is entitled to qualified
immunity, the Court will exercise its discretion under Pearson v.
Callahan,
555
U.S.
223,
236
(2009),
to
proceed
directly
to
consideration of the second step of the Saucier v. Katz, 533 U.S.
194, 201 (2001), analysis. That is, the Court will consider the
reasonableness of Jimenez’s belief that his conduct did not violate
a federal constitutional right belonging to Plaintiffs. See Moore
v.
Vega,
371
F.3d
110,
114-15
(2d
Cir.
2004)
(“[G]overnment
officials enjoy immunity from liability ‘as long as their actions
could reasonably have been thought consistent with the rights they
are alleged to have violated.’”) (quoting Anderson v. Creighton, 483
U.S. 635, 63 (1987); citing Castro v. United States, 34 F.3d 106,
9
112 (2d Cir. 1994) (“Officials are entitled to qualified immunity
when their decision was reasonable, even if mistaken.”) (emphasis
in original; internal citations omitted)). In an action for damages
based on an illegal search, assessing the reasonableness of an
officer’s belief entails asking “whether a reasonable officer could
have believed [the] search to be lawful, in light of [1] clearly
established law and [2] the information the searching officers
possessed.” Anderson, 483 U.S. at 641; accord Moore, 371 F.3d at 115
(citations omitted).
With regard to the state of the clearly established law, the
Second Circuit has recognized that “the duties and objectives of
probation/parole officers and other law enforcement officials,
although distinct, may frequently be ‘intertwined’ and responsibly
require coordinated efforts.” United States v. Newton, 369 F.3d 659,
667 (2d Cir. 2004) (citing United States v. Reyes, 283 F.3d 446,
463-64 (2d Cir. 2002)). The constitutionality of the coordinated
efforts by parole/probation and police depends upon the legitimacy
of the supervision objectives being pursued by the parole/probation
officers, and not the ultimate level of intrusion. Newton, 369 F.3d
at 667 (citing Reyes, 283 F.3d at 464). The Second Circuit found it
“difficult to imagine a situation where a probation [or parole]
officer conducting a home visit in conjunction with law enforcement
officers, based on a tip that the probation officer has no reason
to
believe
conveys
intentionally
10
false
information
about
a
supervisee’s illegal activities, would not be pursuing legitimate
supervised release objectives.” Reyes, 283 F.3d at 463 (citations
omitted).
Thus, for example, the Second Circuit has rejected
parolees arguments’ that the “special needs” of parole supervision3
do
not
extend
to
parole
searches
in
which
police
officers
participate. Id. at 667-68.
The Court turns now to the specifics of Jimenez’s supporting
declaration regarding the information he possessed about the search
on July 27, 2012. Jimenez indicates that on that date, he “was
working as part of Project Impact and with other Rochester police
officers and a New York State trooper,” Jimenez Decl., ¶ 2, and he
“was asked to accompany parole officer Curt Cashman on an inspection
and search of parolee Charles Q. Reed, Jr.’s residence. This, [sic]
according to the briefing parole officer Cashman provided.” Id.
Jimenez avers that he understood that “as an incident of his
parole,” Parolee Reed “signed an agreement permitting such searches
and specifying that he was not to possess firearms, among other
items.” Id., ¶ 3.4 Jimenez also understood that “as an incident of
3
In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court ruled that
“[a] State’s operation of a probation system . . . presents ‘special needs’
beyond normal law enforcement that may justify departures from the usual warrant
and probable-cause requirements.” Id. at 873–74. Relying on Griffin’s “special
needs” exception, the Second Circuit has ruled that “the operation of a parole
system also presents special needs justifying a departure from the traditional
Fourth Amendment warrant requirement.” Newton, 369 F.3d at 665 (citing United
States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (per curiam)).
4
New York State Division of Parole regulations state that “[a] releasee will
permit his parole officer to visit him at his residence and/or place of
employment and will permit the search and inspection of his person, residence and
11
his parole,” Parolee Reed “required approval by the Division of
Parole of the location where he would reside and that parole officer
Cashman had previously visited him at his apartment, #2, at 532
Upper Falls Boulevard in the City of Rochester.” Id. Jimenez states
that after Richard allowed them to enter the building, Cashman
proceeded to Apartment 2, where “he advised he had visited the
parolee previously, and [they] found the parolee lying in bed in the
bedroom with his girlfriend.” Id. ¶¶ 4,5. Jimenez “and the other
police officers” secured Parolee Reed, his girlfriend, and Richard,
“while parole officer Cashman conducted a search of the bedroom.”
Id. ¶ 6. Jimenez indicates that Cashman found a gun which he “turned
. . . over to one of the police officers present”, although he does
not identify which officer that was. Id. ¶ 7.
Jimenez argues that he relied solely on the information Cashman
provided to him about the search to be conducted at Parolee Reed’s
residence on July 27, 2012. He contends that because the Court found
that
Cashman
reasonably
believed
that
on
the
basis
of
the
information he possessed and the state of the law, he was conducting
a lawful search of a parolee’s residence, then Jimenez objectively
and reasonably believed that he was not violating any constitutional
rights in accompanying Cashman that night. As noted above, in its
prior Decision and Order, the Court agreed with Cashman that the
information he possessed made it reasonable for him to believe he
property.” N.Y. COMP. CODES R. & REGS. tit. 9, § 8003.2(d).
12
was conducting a lawful search of a parolee’s residence, and that
even though the accuracy of the information later was called into
question by Plaintiffs, qualified immunity still protected him from
liability since any misapprehension on his part was a reasonable
mistake of fact.
It is well established that “‘no reasonably competent police
officers could disagree’ that a parole officer cannot properly rely
on evidence he knows to be false.” Scotto v. Almenas, 143 F.3d 105,
113 (2d Cir. 1998) (internal citation, quotation and alteration
omitted). Here, however, Plaintiffs have failed to adduce any
evidence that Cashman was relying on information he knew or should
have known to be false. Furthermore, Plaintiffs have come forward
with no evidence to suggest that Jimenez had a basis to question the
veracity of the information that Cashman provided to him or the
reliability of the information Cashman himself possessed about
Parolee
Reed’s
address.
Contrast
with
Foster
v.
Diop,
No. 11–CV–4731(KAM)(JMA), 2013 WL 1339408, at *1 (E.D.N.Y. Mar. 31,
2013) (denying Rule 12(b)(6) motion to dismiss on qualified immunity
grounds where plaintiff’s allegations, taken as true and construed
liberally, were that “because [parole officer] admitted that she
knew the accusations against plaintiff were false, [the parole
officer] had a basis to question the veracity and reliability of
[plaintiff’s
employer’s]
accusations
and
to
investigate
those
accusations further but failed to do so”). Accordingly, the Court
13
finds that Jimenez is entitled to qualified immunity because it was
objectively reasonable for him to believe that his accompanying of
Cashman to execute a warrantless parole search on July 27, 2012, was
lawful.
CONCLUSION
For the reasons set forth above, the RPD Defendants’ motion for
summary judgment (Dkt #27) is granted in favor Alex Jimenez, and is
denied without prejudice with leave to refile as to James Sheppard,
Trevor Powell, and Thomas Minurka. As noted above, the requests by
Sheppard, Minurka, and Powell for summary judgment on the basis of
qualified immunity are facially and substantively deficient. Should
these defendants elect to refile their motion for summary judgment,
they are advised that they bear the burden of demonstrating that it
was objectively reasonable for each of them, individually, to
believe
that
his
conduct
did
not
violate
any
of
Plaintiffs’
constitutional rights.
Any refiled summary judgment motion by defendants
Sheppard,
Minurka, and Powell is due within thirty (30) days of this Decision
and Order. The Court will issue a further scheduling order, if
necessary.
14
The Clerk of the Court is directed to terminate Alex Jimenez
as a party to this action. The Clerk is further directed to replace
“Officer Minerka, RPD” in the caption with “Thomas Minurka, RPD” and
to replace “Powell Tevor, Inv. Roch City Police Department,” in the
caption with “Trevor Powell, Inv. Roch City Police Department.”
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
May 27, 2015
15
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