Reed et al v. Cushman et al
Filing
38
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 32 Motion for Summary Judgment by defendants James M. Sheppard, Thomas Minurka, and Trevor Powell without prejudice, with leave to renew; vacates the Decision and Order dated May 27, 2015 (Dkt #31), granting summary judgment in favor of defendant Alex Jimenez; and vacates the Decision and Order dated January 30, 2014 (Dkt #21), granting summary judgment in favor of defendant Curt Cashman. Alex Jimenez and Curt Cashman are reinstated as defendant s in this action, and the Clerk of the Court is directed to modify the caption accordingly. The case is referred to a magistrate judge for the scheduling of a conference pursuant to Rule 16 of the Federal Rules of Civil Procedure. Copy of Decision and Order sent by first class mail to Plaintiffs. Signed by Honorable Michael A. Telesca on 3/31/2016. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES REED, SR., and RICHARD REED,
No. 6:12-CV-6655T
DECISION AND ORDER
Plaintiffs,
vs.
JAMES M. SHEPPARD, Chief of Police;
POWELL TEVOR, Inv. Roch City Police
Department; 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, 1983, and 1988 against parole
officer Curt Cashman (“P.O. Cashman”),1 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.
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, it has used
these in the Decision and Order.
P.O. Cashman was the first defendant to move for summary
judgment. P.O. Cashman argued that Mr. Reed (but not Richard) lacks
standing to bring this action because he does not reside at the
apartment that was searched; that Richard 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 Parolee
Reed, and therefore the defendants were authorized to enter and
search
the
premises;
and
that
P.O.
Cashman
was
entitled
to
qualified immunity. In a Decision and Order dated January 30, 2014
(Dkt #21), this Court granted P.O. Cashman’s motion for summary
judgment solely on the basis that he was entitled to qualified
immunity. 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.
Subsequently, the remaining defendants—former Chief of the
Rochester Police Department (“RPD”) James Sheppard (“Sheppard”),
and
RPD
officers
Trevor
Powell
(“Powell”),
Alex
Jimenez
(“Jimenez”), and Thomas Minurka (“Minurka”)— moved for summary
judgment. The Court granted summary judgment in favor of Jimenez,
and denied summary judgment as to Sheppard, Powell, and Minurka,
because those defendants’ requests for dismissal on qualified
immunity grounds were facially and substantively deficient. The
denial of summary judgment as to Sheppard, Powell, and Minurka was
without prejudice with leave to refile.
Sheppard, Powell, and Minurka have renewed their motion for
summary judgment (Dkt #32). Plaintiffs filed a “Reply” consisting
-2-
of
affidavits
signed
by
Mr.
Reed
and
Richard,
respectively.
Defendants filed a reply memorandum of law.
Because Defendants have submitted evidence in support of the
current
motion
that
materially
contradicts
averments
in
P.O. Cashman’s declaration submitted in support of his summary
judgment motion, the Court must sua sponte vacate the Decision and
Order granting summary judgment in favor of P.O. Cashman. In
addition, because the Court’s Decision and Order granting summary
judgment on qualified immunity grounds to Jimenez was based on the
reasoning of the Court’s Decision and Order regarding P.O. Cashman,
it also must be vacated. Since the presently pending motion raises
arguments regarding qualified immunity based on the facts as
averred by P.O. Cashman and on the reasoning of the Court’s vacated
decisions, it necessarily must be denied in its entirety as well.
BACKGROUND
Plaintiffs claim that their civil rights were violated in
connection
with
a
search
of
their
residence
conducted
by
P.O. Cashman and the other named defendants based on an anonymous
tip that P.O. Cashman had received regarding Parolee Reed’s alleged
participation in gang-related activities and possible possession of
a firearm. According to Richard, when P.O. Cashman knocked on the
main door to the building at 532 Upper Falls Boulevard on the
evening of July 27, 2012, he answered the door. Richard confirmed
that his brother was there, and left to go get him; however, he did
not direct P.O. Cashman and the RPD officers upstairs to either
-3-
Apartment #1 or Apartment #2,2 which Defendants contend was Parolee
Reed’s approved residence. Richard states that before he could
return with his brother, he was confronted at the upper landing
entry to Apartment #1 and Apartment #2 by Powell, Jimenez and
Minurka, followed by P.O. Cashman. According to Richard, the RPD
officers asked him for his consent to conduct a search of Apartment
#2, which he denied.
P.O. Cashman proceeded to enter the bedroom in Apartment #2
which he believed was Parolee Reed’s bedroom. There P.O. Cashman
discovered Parolee Reed and his girlfriend, Brittany Breedlove
(“Breedlove”),
partially
clothed
and
in
bed.3
P.O.
Cashman
proceeded to search the bedroom. In a vase containing artificial
flowers,
P.O.
Cashman
discovered
a
small
handgun.
After
P.O. Cashman’s discovery of the gun, law enforcement personnel
searched the bedroom and located a safe in the closet. The safe was
seized by the RPD officers. P.O. Cashman did not assist the RPD
officers in this search.
Plaintiffs assert that they (i.e., Richard and Mr. Reed)
resided
Apartment
in
Apartment
#1.
According
#2,
to
while
Parolee
Plaintiffs,
the
Reed
resided
bedroom
in
in
which
P.O. Cashman found Parolee Reed, Breedlove, and the gun (and where
2
Mr. Reed apparently was not at 532 Upper Falls Boulevard at the time the
events began unfolding, but returned home while the RPD officers were still
there.
3
At some point, Richard, Parolee Reed, and Breedlove were handcuffed and
brought to the living room.
-4-
the RPD defendants found the safe) was Mr. Reed’s bedroom. Mr. Reed
was not at 532 Upper Falls Boulevard at the time of the search of
the bedroom in Apartment #2. Richard avers that he did not give
consent
to
enter
or
search
any
portion
of
532
Upper
Falls
Boulevard.
DISCUSSION
“[T]he Court possesses the inherent authority to sua sponte
reconsider its own orders before they become final (absent some
rule
or
statute
to
the
contrary).”
Cusamano
v.
Sobek,
604
F. Supp.2d 416, 435 (N.D.N.Y. 2009) (citing R.M.S. Titanic, Inc. v.
Wrecked and Abandoned Vessel, 924 F. Supp. 714, 716 (E.D. Va. 1996)
(stating the court has the power “to reconsider its prior Order
either sua sponte under Rule 60(b) of the Federal Rules of Civil
Procedure or under its inherent power to modify and interpret its
original order”); see also id. n. 30 (citing United States v.
Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (“The authority of
district courts to reconsider their own orders before they become
final, absent some applicable rule or statute to the contrary,
allows them to correct not only simple mistakes, but also decisions
based
on
shifting
precedent,
rather
than
waiting
for
the
time-consuming, costly process of appeal.”) (citations omitted));
accord F.T.C. v. QT, Inc., 249 F.R.D. 305, 312 (N.D. Ill. 2008)
(“This Court has the ‘inherent power to reconsider rulings until a
final judgment is entered.’”) (quoting In re Chetto, 282 B.R. 215,
216 (Bankr. N.D. Ill. 2002)).
-5-
When P.O. Cashman moved for summary judgment, he submitted a
declaration regarding his personal knowledge of the incident at
issue, along with certain records from Petitioner’s parole file. In
his declaration (Dkt #16-3), P.O. Cashman stated that “acting upon
confidential information that Parolee Reed had violated the terms
of his parole,” he conducted a “home visit” of Parolee Reed’s
approved residence, namely, “the southern apartment on the second
floor4 of 532 Upper Falls Boulevard.” Declaration of Curt Cashman
(“Cashman Decl.”) (Dkt #16-3), ¶ 17. P.O. Cashman stated that he
“knew this to be Parolee Reed’s residence because it was so
indicated in parole records as his approved residence, because of
[a] prior meeting with him in that apartment,5 because the other
areas
of
the
building
were
uninhabited,
and
because
confirmation
from
Richard
boarded
[P.O.
Reed
up
and
Cashman]
that
it
appeared
received
was
his
to
be
verbal
brother’s
apartment.” Id. P.O. Cashman notes that the police officers “needed
to restrain Richard and [Parolee] Reed[.]” Id. ¶ 18.
In
Defendants’
Rule
56
Statement
(Dkt
#32-9)
filed
in
connection with the instant motion, they assert that Richard
“confirmed [to P.O. Cashman] that he and his brother resided in
Apartment #2 in the premises, that parolee Reed was in fact present
4
This residential unit is also referred to by the parties as “Apartment #2.”
5
In excerpts of the parole revocation hearing transcript submitted by
Plaintiffs, P.O. Cashman admitted that, prior to July 27, 2012, he had never been
in Parolee Reed’s bedroom. In addition, it appears that, based on P.O. Cashman’s
testimony at that hearing, he never went inside the building at 532 Upper Falls
Boulevard but instead spoke with Parolee Reed outside the building.
-6-
in the apartment,” and that Richard “directed [P.O.] Cashman and
those with him to that apartment.” Defendants’ Rule 56 Statement
(“Defs’ Stmt.”) (citing Cashman Decl. (Dkt #16-3, resubmitted as
Dkt #32-7) & Defendants’ Exhibits6 (“Defs’ Exs.”) F (RPD Supporting
Deposition signed by P.O. Cashman); I, p. 1 (RPD Investigative
Action Report filed by Powell); & J (RPD Addendem Report filed by
Bennetti, first name unknown). However, none of these exhibits
appear to have been submitted in any of the earlier motions for
summary judgment filed. These documents clearly would have been
relevant to the Court’s determination of the prior motions.
In his RPD Supporting Deposition (one of the newly submitted
exhibits), P.O. Cashman does not mention anything about being met
by Richard at the main door to 532 Upper Falls Boulevard, a
significant difference from his Declaration in support of his
summary judgment motion. Rather, in his Supporting Deposition,
P.O. Cashman simply states he “entered the residence along with
members of the [Operation] Impact Detail” and he “spoke w[ith]
[Parolee] Reed and explained that [they] were conducting a parole
search of his residence. [Parolee] Reed stated he understood and
consented verbally.” Defs. Ex. F. P.O. Cashman further states that
he entered Parolee Reed’s bedroom and searched a vase containing
artificial flowers that was just inside the room; he looked inside
and saw what appeared to be a small handgun tucked inside the base
6
Defendants’ Exhibits are docketed in eight parts at Dkt #32-10 through Dkt
#32-17. These parts do not correspond to the alphabetical labeling of the
exhibits, however.
-7-
of the vase between the flowers. See id. A somewhat different
version of events is given P.O. Cashman’s testimony at Parolee
Reed’s revocation hearing, a portion of which has been submitted by
Plaintiffs.
P.O.
The
Cashman’s
Court
notes
that
contemporaneous
another
Supporting
omission
Deposition
is
from
the
presence of Parolee Reed’s girlfriend in the bedroom that was
searched.
The
multiple
inconsistencies
between
various
parties’
statements and the documentary evidence, discussed above, give the
Court pause. The shifting and confused state of the factual record,
caused by Defendants’ piece-meal submissions of relevant documents,
is also cause for concern. Because Plaintiffs are pro se, and
because
the
case
presents
important
issues
of
constitutional
magnitude, the Court has elected to sua sponte vacate the 2014
Decision
and
Order
granting
summary
judgment
in
favor
of
P.O. Cashman, which was solely made on the grounds of qualified
immunity. The Court notes that in the 2014 Decision and Order it
rejected Defendants’ alternative argument that Mr. Reed lacked
standing to sue, finding that there was a question of fact as to
whether he lived at 532 Upper Falls Boulevard with Richard7 and
Parolee Reed, or with his wife, Lisa Reed, at 14 Lavender Circle,
at the time of the search. Because the Court’s Decision and Order
7
Defendants have not challenged Richard’s standing to sue. At the parole
revocation hearing, P.O. Cashman testified that Richard also was a tenant of
Apartment #2, which P.O. Cashman believed was Parolee Reed’s approved residence.
P.O. Cashman testified that, once upstairs, the Reed brothers’ apartment was on
the left and on the right were some other bedrooms that he thought were a
separate apartment.
-8-
granting summary judgment on qualified immunity grounds to Jimenez
was based on the reasoning of the Court’s Decision and Order
regarding P.O. Cashman, it also must be vacated. Since Defendants’
current motion raises arguments regarding qualified immunity based
on the facts as averred by P.O. Cashman and the reasoning of the
Court’s vacated decisions, it also must be denied in full.8
CONCLUSION
For of the foregoing reasons, the Court denies the Motion for
Summary Judgment (Dkt #32) by defendants James M. Sheppard, Thomas
Minurka, and Trevor Powell without prejudice, with leave to renew;
vacates the Decision and Order dated May 27, 2015 (Dkt #31),
granting summary judgment in favor of defendant Alex Jimenez; and
vacates the Decision and Order dated January 30, 2014 (Dkt #21),
granting summary judgment in favor of defendant Curt Cashman.
Accordingly, it is hereby
ORDERED that the Motion for Summary Judgment (Dkt #32) by
defendants James M. Sheppard, Thomas Minurka, and Trevor Powell is
denied without prejudice, with leave to renew; and it is further
ORDERED that the Court’s Decision and Order dated May 27, 2015
(Dkt #31), is vacated; Alex Jimenez shall be reinstated as a
8
With regard to Minurka’s request for summary judgment, in particular, the
Court notes that his declaration does not cite to any exhibits, such as
Investigative Action Reports, to correlate his actions prior to his obtaining a
warrant to open the safe seized during the search of Apartment #2. While Minurka
states that he did not arrive until after the search was completed, P.O. Cashman,
at the parole revocation hearing, identified Minurka as one of the officers who
assisted Jimenez in conducting the search.
-9-
defendant in this action; and the Clerk of the Court shall modify
the caption accordingly; and it is further
ORDERED that the Court’s Decision and Order dated January 30,
2014 (Dkt #21), is vacated; Curt Cashman shall be reinstated as a
defendant in this action; and the Clerk of the Court shall modify
the caption accordingly; and it is further
ORDERED that Alex Jimenez and Curt Cashman shall be permitted
to renew their motions for summary judgment at a later time after
discovery has been conducted in this matter; and it is further
ORDERED that the case shall be referred to a magistrate judge
for the scheduling of a conference pursuant to Rule 16 of the
Federal Rules of Civil Procedure.9
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
March 31, 2016
9
The Rule 16 conference initially scheduled was adjourned pending
disposition of a previous summary judgment motion, and it was not rescheduled.
No discovery has occurred in this matter yet.
-10-
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