Richardson v. City of Rutland, VT et al

Filing 17

OPINION AND ORDER Adopting 15 Magistrate Judge's Report and Recommendation Granting 9 Defendants' Motion for Summary Judgment. Signed by Chief Judge Christina Reiss on 3/8/2017. (pac)

U.S. DISTRICT COURT
DISTRICT OF VERMONT
FILED

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

201HtAR -8 PH
CLERK

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BY-·-·-~·:.-..;_--

DEPUTY CLERK

DEVIN RICHARDSON,
Plaintiff,
v.
CITY OF RUTLAND, CITY OF RUTLAND
POLICE DEPARTMENT, and
OFFICER JUSTIN D. SOUZA,
Defendants.

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Case No. 2:16-cv-55

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 15 & 9)
This matter came before the court for a de novo review of the Magistrate Judge's
December 15, 2016 Report and Recommendation ("R & R") (Doc. 15). The Magistrate
Judge recommended that the court grant the motion for summary judgment filed by
Defendants City of Rutland, City of Rutland Police Department, and Rutland Police
Officer Justin D. Souza (collectively, "Defendants") (Docs. 9). PlaintiffDevin
Richardson timely objected to the R & R although he did not cite any grounds for his
objection. See Doc. 16 at 1 (stating that Plaintiff"does hereby object to the U.S.
Magistrate Judge['s] ... [R]eport and [R]ecommendation in its entirety").
Plaintiff is self-represented. Defendants are represented by Kaveh S. Shahi, Esq.

I.

Factual Background. 1
On April 11, 2013, officers from the Bureau of Alcohol, Tobacco, Firearms and

Explosives ("ATF") conducted a search of a residence in Rutland, Vermont pursuant to a
search warrant that was based on information from a confidential informant ("CI"). The
CI claimed to have purchased drugs from Joshua Minix at the residence on April 2, 20 13.
Plaintiff was not named in the search warrant or the supporting affidavit. However, prior
to the execution of the search warrant, law enforcement had knowledge that Plaintiff used
the alias Gerald Jourdain.
Plaintiff was asleep when law enforcement entered. Plaintiff initially identified
himself as Gerald Jourdain. Officers handcuffed, dressed, and frisked Plaintiff, removed
him from the residence, and placed him in a cruiser while officers finished the search.
The officers then transported Plaintiff to the Rutland Police Department to investigate his
identity and determine his potential involvement in the Minix investigation. Upon
arriving at the station, officers again frisked Plaintiff.
Officers questioned Plaintiff for approximately two hours, during which time
Plaintiff admitted his actual identity. The officers also learned that Plaintiff had obtained
a fraudulent Vermont identification using his brother's information. Plaintiff was
charged with a misdemeanor count of providing a false report to an officer. Officers
fingerprinted and photographed Plaintiff in order to positively identifY him, and they
brought him to an empty holding cell while awaiting confirmation of his identity.
Pursuant the Rutland Police Department's policy, officers must conduct a
"thorough" search of detainees, including all items of clothing where weapons or
contraband may be hidden. (Doc. 9-1 at 2.) Officer Souza and an ATF agent entered the
holding cell, and Officer Souza conducted a pat down search of Plaintiff. At the time of
1

The court derives the following facts from Defendants' Rule 56 statement of material facts,
Plaintiffs Complaint, and Plaintiffs affidavits dated September 15, 2016 and November 17,
2016. Plaintiff did not file a Rule 56(c) statement of disputed material facts and is thus deemed
to have admitted the facts set forth in Defendants' statement of undisputed facts. See Fed. R.
Civ. P. 56( e)(2) ("If a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56( c), the court may[] ... consider
the fact undisputed for purposes of the motion").

2

his detainment, Plaintiff was wearing multiple layers of clothing. Based on his training
and experience, Officer Souza had knowledge that contraband may be hidden in multiple
layers of clothing.
Officer Souza requested that Plaintiff remove his top shirt and belt, and Plaintiff
complied. Officer Souza then observed that Plaintiff was wearing two pairs of
underwear. Officer Souza frisked Plaintiffs underwear and felt an object. Plaintiff
contends that Officer Souza "grabbed [his] groin area" once he was undressed "down to
his underwear[.]" (Doc. 4 at 3, ,-r 4.) Plaintiff resisted the search and engaged in a
physical struggle with the officers, which led to his being restrained. Plaintiff then
voluntarily produced a small plastic bag of pills from his underwear.
The officers applied for and obtained a warrant for a strip search based on Officer
Souza's belief that Plaintiff was hiding a larger bag of contraband in his underwear based
on the size of the object Officer Souza felt during the previous pat down. The strip
search of Plaintiff did not reveal any further contraband. 2 Plaintiffs misdemeanor charge
of false report to a police officer was subsequently dismissed.
Officers received confirmation of Plaintiffs identity and learned that Plaintiff had
an outstanding New York warrant for violating his parole. Plaintiff was transported to
Marble Valley Regional Correctional Center in Rutland. On April 12, 2013, officers at
Marble Valley Regional Correctional Center searched Plaintiff and discovered
oxycodone.
Plaintiff contends that he was "never charged for any contraband discovered
during the first strip search, which was conducted without a warrant" on April 11, 2013.

!d. at ,-r 7. On May 6, 2015, Plaintiff pled guilty to one count of conspiring to distribute
3

oxycodone and heroin from the summer of2012 through April11 and 12, 2013. On
2

Officers found a clear bag on the floor of the room in which Plaintiff was held, which was not
present when Officer Souza applied for a search warrant. A brown substance which Officer
Souza suspected was feces was observed on the outside ofthe bag.
3

The court takes judicial notice of the docket sheet and documents in Plaintiff's underlying
criminal case, United States v. Richardson, 5:14-cr-45. See Fed. R. Evid. 201(b) (requiring that
judicially noticed fact must be one that "is not subject to reasonable dispute because it: (1) is

3

August 25, 2015, Plaintiff was sentenced to a term of forty-eight months of
imprisonment, followed by a three year term of supervised release.

II.

Procedural Background.
On March 2, 2016, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983,

alleging that Defendants violated his rights under the Fourth and Fourteenth Amendments
by subjecting him to a strip search without reasonable cause. Plaintiff further alleges that
the City of Rutland and the Rutland Police Department had "de facto policies" and
practices in place which resulted in a failure to properly train, screen, supervise, or
discipline employees and police officers. (Doc. 4 at 5.) Plaintiff seeks compensatory and
punitive damages and costs in the amount of$500,000.
On August 15,2016, Defendants filed their motion for summary judgment. In
response, on September 15, 2016, Plaintiff filed an affidavit and attached a copy of the
three page A TF report on the April 11, 20 13 investigation of Plaintiff. At the end of
October 2016, the Magistrate Judge ordered the parties to submit supplemental
memoranda of law regarding the collateral estoppel doctrine and its potential application
to Plaintiffs case. On November 11, 2016, Plaintiff submitted a letter to the court in
which he argued collateral estoppel should not bar his case in part because "the
oxycodone that was the basis of Plaintiffs [f]ederal conviction[] was discovered at the
Marble Valley Regional Correctional Facility by corrections officer[s] on April 12, 2013,
under a different set of circumstances." (Doc. 13 at 2.) On November 21,2016,
Defendants responded that, as a result of his guilty plea, Plaintiff forfeited the right to
challenge the legality of the police encounters which led to the recovery of the narcotics
on April 11, 20 13.
On December 15, 2016, the Magistrate Judge issued an R & R recommending that
Defendants' motion for summary judgment be granted. On January 6, 2017, Plaintiff
objected to the R & R. Defendants have not filed a response.
generally known ... or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned"). On March 1, 2017, the Second Circuit issued a
mandate denying Plaintiffs motion for leave to file a successive 28 U.S.C. § 2255 motion. See
Doc. 87.
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III.

Conclusions of Law and Analysis.
A.

Standard of Review.

A district court judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(l); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. Fed. R. Civ. P. 72(b )(3); 28
U.S.C. § 636(b)(l); accord Cullen, 194 F.3d at 405. A district judge, however, is not
required to review the factual or legal conclusions of the magistrate judge as to those
portions of a report and recommendation to which no objections are addressed. Thomas

v. Arn, 474 U.S. 140, 150 (1985).
Rule 72(b) requires a party to provide "specific written objections to the proposed
findings and recommendations." Fed. R. Civ. P. 72(b)(2); see Mario v. P & C Mkts.,

Inc., 313 F.3d 758,766 (2d Cir. 2002) (concluding a "bare statement, devoid of any
reference to specific findings or recommendations to which he objected and why, and
unsupported by legal authority ... does not constitute an adequate objection under ...
Fed. R. Civ. P. 72(b)"). In this case, Plaintiffs objection provides no guidance to the
court regarding why he contends the R & R is in error. He has thus arguably waived his
right to object. In light of his self-represented status, the court will nonetheless review
the R & R for erroneous factual and legal conclusions.
Summary judgment must be granted when the record shows there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). "A fact is 'material' ... when it 'might affect the outcome of
the suit under the governing law[,]'" and"[ a]n issue of fact is 'genuine' if 'the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.'" Jeffreys v.

City ofNew York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). "If, as to the issue on which summary judgment is
sought, there is any evidence in the record from which a reasonable inference could be
drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of
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Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (internal
quotation marks omitted).
The moving party "always bears the initial responsibility of informing the district
court of the basis for its motion, and identifYing those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986) (internal quotation marks
omitted). "When 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 .... [Rather], the nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (citations, emphasis, footnote, and internal quotation marks
omitted).
"The trial court's function in deciding such a motion is not to weigh the evidence
or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and
drawing all inferences in favor of the non-moving party, a rational juror could find in
favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000); see also

McClellan v. Smith, 439 F.3d 137, 148 (2d Cir. 2006) ('"Resolutions of credibility
conflicts and choices between conflicting versions of the facts are matters for the jury,
not for the court on summary judgment."') (quoting United States v. Rem, 38 F.3d 634,
644 (2d Cir. 1994)).
Because Plaintiff is self-represented, the court must construe his filings "liberally
and interpret[] [them] to raise the strongest arguments that they suggest." Triestman v.

Fed. Bureau ofPrisons, 470 F.3d 471,474 (2d Cir. 2006) (emphasis and internal
quotation marks omitted). Although the court ordinarily grants a self-represented litigant
leave to amend, it need not do so when the claims are futile. See Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) ("The problem with [the self-represented plaintiffs]
causes of action is substantive; better pleading will not cure it. Repleading would thus be
futile. Such a futile request to replead should be denied.").
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B.

Whether the Magistrate Judge Correctly Concluded that the Strip
Search did not Violate Plaintiff's Fourth Amendment Rights.

In order to prevail on a claim brought under 42 U.S.C. § 1983, Plaintiff must
establish (1) actions taken under color oflaw; (2) a deprivation of a constitutional or
statutory right; (3) causation; and (4) damages. See Roe v. City of Waterbury, 542 F.3d
31,36 (2d Cir. 2008); Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir.
2010). Plaintiff alleges that Officer Souza's strip search violated his Fourth Amendment
rights because Officer Souza did not have reasonable suspicion that he possessed
contraband. 4
Under the Fourth Amendment, officers must possess "an individualized reasonable
suspicion that [a misdemeanor] arrestee is concealing weapons or other contraband based
on the crime charged, the particular characteristics of the arrestee, and/or the
circumstances of the arrest before []he may be lawfully subjected to a strip search."
Hartline v. Gallo, 546 F.3d 95, 100 (2d Cir. 2008) (internal quotation marks omitted); see
also NG. v. Connecticut, 382 F.3d 225, 232 (2d Cir. 2004) (observing that all circuits to

consider the issue have reached a similar conclusion). "A reasonable suspicion of
wrongdoing is something stronger than a mere hunch, but something weaker than
probable cause." Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (internal quotation
marks omitted). "To establish reasonable suspicion, [officers] must point to specific
objective facts and rational inferences that they are entitled to draw from those facts in
light of their experience." !d. (internal quotation marks omitted). Reasonable suspicion

4

The parties dispute whether Officer Souza's initial search of Plaintiff at the Rutland Police
Department constituted a strip search. Compare Doc. 4 at 4 ("By subjecting Plaintiff, a
misdemeanor arrestee, to a strip search without reasonable cause at the [Rutland Police
Department], the individual [D]efendants[] ... violated Plaintiffs civil rights"), with Doc. 9 at 5
("the initial search of the [P]laintiffwas not a strip search"). The Supreme Court has recognized
that a search of a suspect consists of"a careful exploration of the outer surfaces of a person's
clothing all over his or her body" including "arms and armpits, waistline and back, the groin area
about the testicles, and entire surface of the legs down to the feet." Terry v. Ohio, 392 U.S. 1,
16, 17 n.13 (1968) (internal quotation marks omitted). Construing the evidence in the light most
favorable to Plaintiff, however, the court assumes for purposes of this motion that Officer
Souza's initial search of Plaintiff constituted a strip search.

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is evaluated based upon the "totality of the circumstances[,]" rather than viewing them
"in isolation from each other[.]" United States v. Arvizu, 534 U.S. 266, 273-74 (2002).
In this case, Officer Souza had reasonable suspicion that Plaintiff possessed
contraband at the time of the initial search at the Rutland Police Department. Officers
first encountered Plaintiff while he was asleep in a residence that was being searched
based on suspicion of drug trafficking. See generally Elk v. Townson, 839 F. Supp. 1047,
1052 (S.D.N.Y. 1993) (holding plaintiff's "presence in a vehicle which smelled strongly
of marijuana and in which marijuana was found both on another occupant and in a
container located near him gave the Sheriff's Office reasonable grounds to suspect that
[plaintiff] might be hiding drugs on his person"). Although Plaintiff's name did not
appear in the search warrant, law enforcement officers had knowledge that Plaintiff used
an alias before they executed the search warrant, and Plaintiff did, in fact, utilize his alias
when questioned. Moreover, officers subsequently learned that Plaintiff fraudulently
obtained a Vermont identification card by using his brother's information. See United
States v. Asbury, 586 F.2d 973, 976-77 (2d Cir. 1978) (listing factors for court to consider
when determining reasonableness, including "[ e]vasive or contradictory answers"). In
addition, Plaintiff was wearing multiple layers of underwear, and based on his training
and experience, Officer Souza had knowledge that drugs or weapons may be hidden
under numerous layers of clothing. See id. (identifying "[l]oose-fitting or bulky clothing"
as a factor supporting reasonable suspicion).
As the Magistrate Judge correctly noted, Plaintiff did not contest any of the fact
supporting Officer Souza's reasonable suspicion. To the contrary, many of the
statements in Plaintiff's affidavit and the A TF report attached thereto support Officer
Souza's reasonable suspicion that Plaintiff possessed hidden contraband. See Doc. 11 at
1 (noting the "search warrant was issued on the strength of an informant's purchase of
drugs ... at [the] residence"); id. ("Plaintiff identified himself as Gerald Jourdain"); id. at

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2 (stating that, after two hours of questioning, Plaintiff"admitted to his true identity as
being Devin Richardson"). 5
Because Officer Souza had reasonable suspicion that Plaintiff possessed concealed
contraband, Plaintiff cannot establish his § 1983 claim against Officer Souza as no
constitutional violation occurred. Accordingly, the court GRANTS Defendants' motion
for summary judgment with respect to Plaintiffs claim against Officer Souza.
In order to establish the City of Rutland's liability, Plaintiff must demonstrate that
he "suffered a tort in violation of federal law committed by the municipal actors and, in
addition, that their commission of the tort resulted from a custom or policy of the
municipality." Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (citing Monell v.

Dep 't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). Under federal law, "a municipality
cannot be liable for inadequate training or supervision when the officers involved ... did
not violate the plaintiffs constitutional rights." Curley v. Vill. of Suffern, 268 F.3d 65,71
(2d Cir. 2001 ). Because the court has determined that Officer Souza did not violate
Plaintiffs Fourth Amendment rights, Plaintiffs derivative claims against the City of
Rutland must also be dismissed. Plaintiffs claims against the Rutland Police Department
fail for the additional reason that municipal police departments are not "persons" within
the meaning of§ 1983. See Carthew v. Cty. of Suffolk, 709 F. Supp. 2d 188, 195
(E.D.N.Y. 2010) ("It is well settled that an entity such as the Suffolk County Police
Department is an 'administrative arm' of the same municipal entity as Suffolk County
and thus lacks the capacity to be sued."). The court thus GRANTS Defendants' motion
for summary judgment with respect to Plaintiffs claims against the City of Rutland and
the Rutland Police Department.

5

See also Doc. 11-1 at 2 (recounting in ATF report that Plaintiff stated "he had just moved" to
the searched residence and that "it was his apartment and that the money found in a sock,
believed by him to be just over $4,000.00, in the bedroom where he was sleeping belonged to
him"); id. (stating Plaintiff"said that he originally came to Vermont to sell narcotics, but that he
had since stopped selling and that he now only sold marijuana").

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CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R in its entirety (Doc. 15) and GRANTS Defendants' motion for summary judgment
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(Doc. 9).
Dated at Burlington, in the District of Vermont, this

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t' day of March, 2017.