Gonzalvo v. Brown

Case Information

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _____________________________

RUBEN GONZALVO,

Plaintiff,

Civil Action. No. 9:11-CV-0909 (NAM/DEP) v.

THE STATE OF NEW YORK,

Defendant.

______________________________

APPEARANCES: OF COUNSEL: FOR PLAINTIFF:

RUBEN GONZALVO, pro se

97-A-3050

Woodburne Correctional Facility

99 Prison Road

P.O. Box 1000

Woodburne, N.Y. 12788-1000

FOR DEFENDANTS:

HON.ERIC T. SCHNEIDERMAN CATHY SHEEHAN, ESQ. Office of the Attorney General Assistant Attorney General State of New York

The Capitol

Albany, NY 12224-0341

DAVID E. PEEBLES

U.S. MAGISTRATE JUDGE REPORT AND RECOMMENDATION

Pro se plaintiff Ruben Gonzalvo, a New York State prison inmate, has commenced this action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq. , and section 504 of the Rehabilitation Act (“section 504”), 29 U.S.C. § 794. In his complaint, Gonzalvo generally alleges that, as a qualified individual with a disability under the ADA, the defendant, the State of New York, wrongfully denied him the right to participate in or the benefit from sign language classes.

Currently pending before the court is the State of New York’s motion seeking dismissal of plaintiff’s complaint based upon its assertion that the court lacked jurisdiction to sua sponte deem plaintiff’s complaint amended to substitute the State of New York as the sole defendant. Having carefully reviewed defendant’s motion, I recommend that the motion be denied. I. BACKGROUND

Plaintiff is a prison inmate who is now being held in the custody of the New York Department of Corrections and Community Supervision (“DOCCS”). See generally Compl. (Dkt. No. 1). At all times relevant to this action, plaintiff was confined at the Eastern Correctional Facility (“Eastern”), located in Napanoch, New York. Id. at 6.

2 Construed liberally, plaintiff’s complaint alleges that he qualifies as a disabled person under the ADA and section 504 because he is deaf or hearing impaired. Compl. (Dkt. No. 1) at 7-10. According to plaintiff, several of the originally named defendants, all of whom are no longer parties to this action and are employed by the DOCCS, failed to provide him with access to participation in sign language classes. Id. at 11-12. It is alleged that plaintiff is in need of sign language classes in order to learn “another way of communication.” Id. at 13.

II. PROCEDURAL HISTORY

This action was commenced on August 3, 2011, by the filing of a

complaint and an accompanying application to proceed in forma pauperis (“IFP”). Compl. (Dkt. No. 1). Although plaintiff Gonzalvo is the only remaining plaintiff, the complaint named five other plaintiffs that have now been dismissed from the case by virtue of a decision and order issued on May 4, 2012, by District Judge Norman A. Mordue. Decision and Order (Dkt. No. 11). Additionally, the complaint named six individual defendants, five of whom were dismissed following Judge Mordue’s initial review of the complaint. Decision and Order (Dkt. No. 5). Service of process could not be effectuated with respect to the remaining defendant, identified in the

3 complaint as “Mr. Williams,” because he is deceased. Decision and Order (Dkt. No. 22). Accordingly, Judge Mordue dismissed that defendant from the action, and sua sponte “deem[ed] the complaint amended to name the

State of New York as the sole defendant.” Id. Plaintiff’s complaint asserts two causes of action, one under the ADA and another under section 504, but it fails to set forth a prayer for relief. See generally Compl. (Dkt. No. 1).

On December 19, 2012, in lieu of an answer, defendant filed a motion seeking dismissal of plaintiff’s complaint, arguing that the court lacked jurisdiction to sua sponte amend the complaint on behalf of the plaintiff to name the State of New York as the sole defendant. Def.’s Memo of Law (Dkt. No. 29-1) at 4-6. Defendant’s motion, to which plaintiff 1 failed to respond, is now ripe for determination, and has been referred to

me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

In a decision and order dated September 19, 2012, Judge Mordue held that, “[i]n light of plaintiff’s pro se status, . . . the Court hereby dismisses Williams as a defendant and deems the complaint amended to name the State of New York as the sole defendant.” Decision and Order (Dkt. No. 22) at 2. Judge Mordue explained that, because the proper party to sue under the ADA and section 504 is either the public entity responsible for the conduct in dispute, or a public official acting in his official capacity, the State of New York was the appropriate entity to substitute following the death of defendant Williams. Id. ; see also , e.g. ,

Parra v. Wright , No. 11-CV-6270, 2011 WL 3608475, at *3 (W.D.N.Y. Aug. 10, 2011). Although defendant argues that the court did not have jurisdiction to make that substitution, it candidly acknowledges the absence of any legal authority to support its position. Def.’s Memo. of Law (Dkt. No. 29-1) at 5. Rather, defendant simply states that, “[f]or the same reason the Court lacked the jurisdiction to substitute Williams’ with his successor, the Court lacks jurisdiction to substitute Williams with the State of New York.” Id.

Having carefully considered defendant’s argument, and conducting 5

my own research on the issue, I find there is no merit to its argument. Because a claim under the ADA and section 504 may be commenced against the public entity responsible for the alleged acts, plaintiff could have commenced this action against the State of New York from its inception. Instead, plaintiff opted to commence the action against a public official, Mr. Williams. Compl. (Dkt. No. 1). For the sake of judicial efficiency, and in its inherent authority to manage its docket, the court sua

sponte substituted the State of New York, instead of, for example, issuing an order directing plaintiff to amend his complaint to name the State of New York as defendant. The court’s authority to issue such a directive is well supported. , e.g. , Zuk v. Gonzalez , No. 07-CV-0732, 2007 WL 2163186, at *2 (N.D.N.Y. July 26, 2007) (Scullin, J.) (“[T]o the extent that Plaintiff has named the individual Defendants in their official capacities, he has in essence named Onondaga County . . . as a Defendant. Construing Plaintiff’s complaint liberally in light of his pro se status, and in the interest

of judicial economy, the Court will sua sponte substitute Onondaga County as the sole Defendant in place of the individually named defendants.” (internal citations omitted)); Dockery v. Tucker , No. 97-CV- 3584, 2006 WL 5893295, at *7 (E.D.N.Y. Sept. 6, 2006) (adding the

6 United States as a defendant,

sua sponte , in a Federal Tort Claims Act

claim brought by a pro se plaintiff); Ciancio v. Gorski , No. 98-CV-0714,

1999 WL 222603, at *1 (W.D.N.Y. Apr. 14, 1999) (substituting, sua sponte and “in the interest of eliminating undue complication without affecting the substantial rights of the parties,” the County of Erie as a defendant where it was unclear that the plaintiff could sue an individual in his official capacity under Title VII but well established that the county was a proper 2 defendant). Accordingly, I recommend that defendant’s motion to dismiss

plaintiff’s complaint be denied.

IV. SUMMARY AND RECOMMENDATION

Plaintiff’s complaint originally asserted claims under the ADA and section 504 against six individual defendants. Following the dismissal of five of those defendants, and learning that the sixth defendant is deceased, Judge Mordue substituted the State of New York as the sole defendant. His authority to sua sponte make that substitution in the

interest of judicial efficiency, and in light of plaintiff’s pro se status, is well supported. For these reasons, it is hereby respectfully

RECOMMENDED that defendant’s motion to dismiss for failure to state a claim (Dkt. No. 29) be DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), (d);

Fed. R. Civ. P. 72; Roldan v. Racette , 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of this court serve a copy of this report and recommendation upon the parties in accordance with this court’s local rules.

Dated: July 10, 2013

Syracuse, New York

8 12(b)(6) asserting that (1) the complaint fails to state a claim under the Eighth Amendment for deliberate indifference to his medical needs; (2) the complaint fails Only the W estlaw citation is currently available. to allege personal involvement by defendant Dennis

Breslin (“Breslin”), Superintendent of Arthur Kill Correctional Facility (“Arthur Kill”); and (3) defendants United States District Court, E.D. New York. are entitled to qualified immunity. Although W hite has Antwon W HITE, Plaintiff, filed no opposition to defendants' motion, the Court can v. decide the motion without the benefit of a submission Dr. J. MITCHELL, Arthur Kill Correctional Facility from him. FN2 For the reasons set forth below, defendants' Health Services Director, Dennis Breslin, Arthur Kill motion is denied. Correctional Facility Superintendent and Edward Checkett, D.D.S., Arthur Kill Correctional Facility Dentist, Defendants. FN1. “[T]he plaintiff ... should not have the

No. 99-CV-8519 (FB). complaint automatically construed as focusing on one capacity to the exclusion of the other.” Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.1993). Jan. 18, 2001. FN2. See McCall v. Pataki, 232 F.3d 321, 323 Antwon W hite, Arthur Kill Correctional Facility, Staten (2d Cir.2000) (“If a complaint is sufficient to Island, New York, for the Plaintiff, pro se. state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal”). Eliot Spitzer, Attorney General of the State of New York, By: Maria Filipakis, New York, New York, for the Defendants. BACKGROUND

MEMORANDUM AND ORDER The following facts are drawn from W hite's complaint and the records attached thereto, and are accepted as true for the purposes of this motion: On August 5, 1999, while BLOCK, J. incarcerated at Arthur Kill, W hite had a wisdom tooth extracted by defendant Edward Checkett (“Checkett”), a dentist employed at Arthur Kill. Read broadly, the Plaintiff Antwon W hite (“W hite”), a prison inmate, complaint seems to allege that Checkett was aware that he brings this action pro se pursuant to 42 U.S.C. § 1983 and negligently injured W hite during the extraction procedure, New York law alleging that defendants were both but failed to provide immediate medical attention. negligent and deliberately indifferent to his medical needs in connection with treatment for hearing loss he suffered

following the extraction of a wisdom tooth. W hite pleads Soon after the extraction, W hite began experiencing that this conduct violated his rights under the Eighth ringing and hearing loss in his left ear. On several Amendment, and seeks injunctive relief as well as occasions, W hite brought these complaints to the attention compensatory and punitive damages. W hile W hite does of defendant Jennifer Mitchell (“Mitchell”), Arthur Kill's not make the distinction clearly, the Court construes the Health Services Director. However, Mitchell did not complaint as naming defendants in both their individual provide W hite with prompt medical attention, and, in and official capacities. Defendants have moved to particular, failed to refer him to an ear specialist. dismiss W hite's complaint pursuant to Fed.R.Civ.P. Cir.1995). In addition, because W hite is a pro se plaintiff, his pleadings must be read liberally. See Corcoran v. New On November 15, 1999, W hite filed an administrative York Power Auth., 202 F.3d 530, 536 (2d Cir.1999); complaint, pursuant to the Department of Correctional Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). The Services' grievance procedures, requesting medical Court should grant such a motion only if, after viewing the attention for his hearing problem and, “if necessary,” a plaintiff's allegations in the most favorable light, it appears referral to an ear specialist. Inmate Grievance Complaint beyond doubt that the plaintiff can prove no set of facts in attached to Compl. W hite alleges that Breslin denied his support of his claim which would entitle him to relief. See grievance, and “failed to direct his subordinates” to Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Feder v. provide W hite with prompt medical attention. FN3 Frost, 220 F.3d 29, 32 (2d Cir.2000).

FN3. Despite W hite's allegation to the contrary, II. Section 1983 Individual Capacity Claims the Inmate Grievance Resolution Committee (“IGRC”) appears to have accepted W hite's

grievance on November 30, 1999, and directed Defendants contend that W hite's complaint must be him to “report back to sick-call.” Inmate dismissed because it fails to state an Eighth Amendment Grievance Complaint attached to Compl. violation. To state a claim under § 1983 for deprivation of medical treatment, a plaintiff must show that the defendant

acted with “deliberate indifference to serious medical On December 9, 1999, W hite was seen by an audiologist needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A who described the degree of hearing loss in his left ear as serious medical need exists where “the failure to treat a “severe-profound.” NYSDOCS Request & Report of prisoner's condition could result in further significant Consultation attached to Compl. The audiologist injury or the unnecessary and wanton infliction of pain.” recommended further medical consultation to determine Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) the etiology of W hite's hearing loss and approval for a (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th hearing aid evaluation. See Id. W hite filed the complaint Cir.1997)) (internal quotation marks omitted). The Second in this action on December 23, 1999. Circuit has recently held that refusal to treat a

degenerative condition that tends to have serious medical implications if left untreated is a sufficient basis to support DISCUSSION the existence of a serious medical need. See Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir.2000) (holding that a tooth cavity may be a serious medical condition). I. Standard on a Motion to Dismiss

To establish deliberate indifference, the plaintiff must In considering a motion to dismiss, the court's task is “ prove that “the prison official knew of and disregarded the ‘necessarily a limited one.” ’ George Haug Co. v. Rolls plaintiff's serious medical needs.” Chance, 143 F.3d at Royce Motor Cars Inc., 148 F.3d 136, 139 (2d Cir.1998) 703 (citing Farmer v. Brennan, 511 U.S. 825, 837 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). (1994)). Deliberate indifference will exist when an official “[I]n ruling on [the] defendant[s'] motion, the court must “knows that inmates face a substantial risk of serious harm accept as true all the factual allegations in the complaint and disregards that risk by failing to take reasonable and must draw all reasonable inferences in favor of the measures to abate it.” Farmer, 511 U.S. at 847. plaintiff.” Hamilton Chapter of Alpha Delta Phi, Inc. v. “Deliberate indifference requires more than negligence, Hamilton College, 128 F.3d 59, 63 (2d. Cir1997). The but less than conduct undertaken for the very purpose of Court may consider the allegations in the complaint and causing harm.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d “all papers and exhibits appended to the complaint, as well Cir.1994). “[M]ere medical malpractice' is not tantamount as any matters of which judicial notice may be taken.” to deliberate indifference,” but may rise to the level of Hirsch v. Arthur Anderson & Co., 72 F.3d 1085, 1092 (2d deliberate indifference when it “involves culpable recklessness, i.e., an act or failure to act ... that evinces ‘a involvement of a supervisory defendant may be shown by conscious disregard of a substantial risk of harm.” ’ evidence that ... the defendant, after being informed of the Chance, 143 F.3d at 703 (quoting Hathaway v. Coughlin, violation through a report or appeal, failed to remedy the 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks wrong....” Colon v. Coughlin, 58 F.3d 865, 873 (2d omitted)). Cir.1995). W hite alleges that his grievance made Breslin aware that his medical needs were being ignored. W hite's

further allegations that Breslin denied the grievance, and *3 White has alleged a “serious medical condition” under failed to take steps to provide for W hite's treatment are sufficient to plead Breslin's personal involvement in the Gamble. He states that the ringing in his ear developed into a progressive loss of hearing. Indeed, the audiologist's violation.

report referred to above characterizes the degree of

hea ring lo ss in W hite 's left ear as being

“severe-profound.” III. Section 1983 Official Capacity Claims Gamble' s “deliberate indifference” prong is satisfied in To the extent W hite has asserted claims seeking damages respect to each of the defendants in their individual against defendants in their official capacities, they are capacities by a reasonably liberal reading of W hite's pro barred by sovereign immunity. See Will v. Michigan Dep't se complaint. W ith respect to Checkett, W hite appears to of State Police, 491 U.S. 58 (1989). However, the allege that the injury leading to his hearing loss occurred complaint also seeks injunctive relief against the when Checkett negligently extracted his wisdom tooth. defendants. Injunctive relief may be obtained in a § 1983 Dental malpractice, without more, does not state a claim action for deliberate indifference to a serious medical cognizable under § 1983. W hite further alleges, however, need, even absent an official's personal involvement, if the that Checkett was deliberately indifferent to his medical complaint alleges that the official had “responsibility to condition because, once he knew that he had injured ensure that prisoners' basic needs were met, and the complaint adequately alleged deliberate indifference to a W hite during the extraction procedure, he failed to render timely medical treatment to abate the harm. serious medical need.” Koehl v. Dalsheim, 85 F.3d 86, 89 (2d Cir.1996); see also New York City Health & Hosp. Corp. v. Perales, 50 F.3d 129, 135 (2d Cir.1995) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, As for Mitchell, W hite alleges that she ignored his subsequent repeated requests for appropriate treatment 102, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)) (“the Eleventh while his condition worsened, and failed to supervise Amendment does not bar federal courts from issuing an Arthur Kills's medical personnel in connection with his injunction against a state official who is acting contrary to federal law”). W hite alleges that defendants have denied treatment. Mitchell, therefore, allegedly knew of W hite's serious medical need, and consciously failed to act to him treatment for his progressive hearing loss. If he can prevent further harm to W hite. prove his contentions, he may be entitled to injunctive

relief.

Finally, Breslin allegedly failed to adequately supervise

W hite's treatment, and denied his grievance. Defendants IV. Qualified Immunity

assert that the complaint must be dismissed as to Breslin

because it fails to allege his personal involvement in the

Eighth Amendment violation. Because “[s]ection 1983 The defendants enjoy qualified immunity from W hite's imposes liability only upon those who actually cause a suit if their conduct “does not violate clearly established deprivation of rights, ‘personal involvement of defendants statutory or constitutional rights of which a reasonable in alleged constitutional deprivations is a prerequisite to person would have known.” Harlow v. Fitzgerald, 457 an award of damages under § 1983.” ’ Blyden v. Mancusi, U.S. 800, 818 (1982). Even where a prisoner's rights are 186 F.3d 252, 264 (2d Cir.1999) (quoting Wright v. Smith, clearly established, “qualified immunity is still available 21 F.3d 496, 501 (2d Cir.1994)). However, “personal to an official if it was ‘objectively reasonable for the Not Reported in F.Supp.2d, 2001 W L 64756 (E.D.N.Y.)

public official to believe that his acts did not violate those

rights.” ’ Hathaway, 37 F.3d at 67 (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.1991)). SO ORDERED.

Defendants contend that their actions were objectively E.D.N.Y.,2001.

reasonable. ( Def. Mem. at 9). However, because the W hite v. Mitchell

complaint adequately alleges a claim for deliberate

indifference, defendants are not entitled to qualified

immunity on their Fed.R.Civ.P. 12(b)(6) motion. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996) (the END OF DOCUMENT issue when considering qualified immunity in the context

of Fed.R.Civ.P. 12(b)(6) “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims”). This allegation, if

proved, could constitute a violation of W hite's Eighth

Amendment rights, and more facts are necessary to resolve

the qualified immunity question.

V. State Law Claims

As referred to above, the complaint, liberally construed,

also alleges dental malpractice against Checkett and

negligent supervision against Breslin and Mitchell in their

individual capacities. Although theses claims are not

cognizable in an action under § 1983, they do allege state law claims. Defendants do not address these claims in

their motion to dismiss. Pursuant to 28 U.S.C. § 1367, the Court has supplemental jurisdiction over these pendent

claims. See Shimon v. Department of Corr. Serv. for the

[*] State of N.Y., No. 93 Civ. 3144(DC), 1996 W L 15688, at Correction Law does not bar federal court from hearing pendent state law medical malpractice claim asserted 3 (S.D.N.Y. Jan. 17, 1996) ( Section 24 of New York

against New York State Department of Correctional

Services employee in employee's individual capacity).

However, the Eleventh Amendment bars W hite's claims

for damages or injunctive relief against the defendants in

their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663 (1974); Fleet Bank, Nat'l Ass'n v. Burke, 160 F.3d 883, 891 (2d Cir.1998).

CONCLUSION

Defendants' motion to dismiss is denied.

Not Reported in F.Supp.2d, 2011 WL 3608475 (W.D.N.Y.)

(Cite as: 2011 WL 3608475 (W.D.N.Y.))

pain, and at times has had his pain medications and physical therapy discontinued, his back brace confiscated, and has been denied a bottom bunk. Plaintiff also alleges Only the Westlaw citation is currently available. that the defendants violated the Americans with Disability United States District Court, Act and § 504 of the Rehabilitation Act. W.D. New York. For the reasons discussed below, plaintiff will be Edwin PARRA, Plaintiff, given an opportunity to file an amended complaint. If v. plaintiff does not file an amended complaint as directed Dr. Lester WRIGHT, Chief M.D.; DR/NP Ben Oakes, below, plaintiff's § 1983 claims against Wright; Vonhagn; Southport C.F.; Dr. Canefield, Southport C.F.; Jon Director of Health Services Southport; Oakes; Canefield; Vonhagn, Nurse Administrator; Director of Health Weaver; Clement; Director of Health Services Lakeview; Services, Southport; K. Weaver, RN, Southport C.F.; D. Director of Health Services Levitt; Post; and Wilcox will Weed, RN, Southport C.F.; Mr. Clement, Nurse, be dismissed, and § 1983 claims against only Weed and Southport C.F.; Dir. of Health Services, Lakeview C.F.; Obertean will proceed forward. N.P. Obertean, Wende C.F.; Dir. of Health Services Levitt, Wende C.F.; Susan Post, Wende C.F.; and L. Further, in regard to plaintiff's ADA and Wilcox, NP, Lakeview C.F., Defendants. Rehabilitation Act claims, if plaintiff does not file an No. 11–CV–6270Fe. amended complaint as directed below, the Court will allow the ADA and Rehabilitation Act claims to proceed solely Aug. 10, 2011. against defendant Wright in his official capacity and will Edwin Parra, Pine City, NY, pro se. dismiss ADA and Rehabilitation Act claims against all remaining defendants entirely. DECISION and ORDER Plaintiff has filed a motion to amend the complaint

WILLIAM M. SKRETNY, Chief Judge. (Docket No. 6) which based on this Order is denied as INTRODUCTION moot. Further, the reasons discussed below, plaintiff's Plaintiff has requested permission to proceed in motion for appointment of counsel (Docket No. 3) is forma pauperis pursuant to 28 U.S.C. § 1915(a) and by denied. Order dated June 17, 2011, was directed to either file additional information in support of the request or pay the DISCUSSION filing fee (Docket No. 4). Plaintiff timely filed the requested additional information (Docket No. 5). Based on Plaintiff has met the statutory requirements of 28 the additional information, the Court finds that plaintiff U.S.C. § 1915(a) and filed an Authorization with respect has met the statutory requirements. Accordingly, plaintiffs to this action. Therefore, plaintiff is granted permission to request to proceed as a poor person is hereby granted. proceed in forma pauperis. Sections 1915(e)(2)(B) and Plaintiffs complaint has been reviewed by the Court 1915A(a) of 28 U.S.C. require the Court to conduct an with respect to the 28 U.S.C. §§ 1915(e)(2) and 1915A initial screening of this complaint. The Court shall dismiss criteria. Plaintiff alleges, pursuant to 42 U.S.C. § 1983, a complaint if the action (I) is frivolous or malicious; (ii) that the defendants were deliberately indifferent to his fails to state a claim upon which relief may be granted; or serious medical needs by failing to provide adequate (iii) seeks monetary relief against a defendant who is treatment when he was incarcerated at several prisons immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and including Southport, Wende, and Lakeview Correctional 1915A(b); see also Abbas v. Dixon, 480 F.3d 636 (2d Facilities. Plaintiff states that he suffers from chronic back

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Not Reported in F.Supp.2d, 2011 WL 3608475 (W.D.N.Y.)

(Cite as: 2011 WL 3608475 (W.D.N.Y.)) Cir.2007). A prerequisite for liability under a § 1983 claim is In evaluating the complaint, the Court must accept as “personal involvement” by the defendants in the alleged true all of the factual allegations and must draw all constitutional deprivation. Spencer v. Doe, 139 F.3d 107, inferences in plaintiffs favor. See Larkin v. Savage, 318 112 (2d Cir.1998). F.3d 138, 139 (2d Cir.2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999). “Specific facts A defendant may be “personally involved” in causing a are not necessary,” and the plaintiff “need only ‘give the constitutional deprivation if: (1) defendant participated defendant fair notice of what the ... claim is and the directly in the alleged infraction; or (2) acting in a grounds upon which it rests.’ ” Erickson, v. Pardus, 551 supervisory capacity, defendant (a) failed to remedy a U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 continuing or egregious wrong after learning of a (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. violation, (b) created a policy or custom under which 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) the unconstitutional practices occurred or allowed such (internal quotation marks and citation omitted); see also policy or custom to continue, or (c)was “grossly Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir.2008) negligent” in managing subordinates who actually (discussing pleading standard in pro se cases after caused the constitutional deprivation. Twombly ). “A document filed pro se is to be liberally

construed, ..., and a pro se complaint, however inartfully Candelaria v. Coughlin, 787 F.Supp. 368, 372 pleaded, must be held to less stringent standards than (S.D.N.Y.1992) (citing Williams v. Smith, 781 F.2d 319, formal pleadings drafted by lawyers.” Erikson, 551 U.S. 323–24 (2d Cir.1986)). See also Colon v. Coughlin, 58 at 94, 127 S.Ct. at 2200 (internal quotation marks and F.3d 865, 874 (2d Cir.1995) (“The bare fact that [the citations omitted). defendant] occupies a high position in the New York

prison hierarchy is insufficient to sustain [plaintiff's] Plaintiff brings this action pursuant to 42 U.S.C. § claim”). 1983. “To state a valid claim under 42 U.S.C. § 1983, the Plaintiff is further advised that supervisory defendants plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and are not personally involved for purposes of § 1983 (2) deprived the plaintiff of a right, privilege, or immunity liability based solely on a failure to respond to letters sent secured by the Constitution or laws of the United States.” by plaintiff. “Generally, the allegation that a supervisory official ignored a prisoner's letter protesting Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.1997) (citing Eagleston v. Guido, 41 F.3d 865, unconstitutional conduct is not itself sufficient to allege 875–76 (2d Cir.1994)). the personal involvement of the official so as to create liability under § 1983.” Gayle v. Lucas, No. 97 Civ. 0883(MGC), 1998 WL 148416, at *4 (S.D.N.Y. March Plaintiff also alleges that he is bringing claims under the Americans with Disabilities Act and the Rehabilitation 30, 1998). Cf. Colon v. Coughlin, 58 F.3d 865, 873 (2d Act. Cir.1995) (plaintiffs allegation that the superintendent of a correctional facility did not respond to his letter of his INDIVIDUAL DEFENDANTS complaint did not raise a triable issue of fact where the contents of the letter were not specified); Davis v. City of § 1983 ACTION—PERSONAL INVOLVEMENT New York, No. 00CIV4309 SAS, 2000 WL 1877045, at *9 Plaintiff names thirteen defendants, but except for (S.D.N.Y. Dec.27, 2000) (finding no personal defendants Weed and Obertean, provides minimal or no involvement where supervisory official ignored letter of allegations of personal involvement of the defendants. protest and had no other involvement in the alleged Plaintiff's § 1983 claims against all defendants, except constitutional deprivation); Richardson v. Coughlin, 101 Weed and Obertean, are therefore subject to dismissal. F.Supp.2d 127, 132–133 (W.D.N.Y.2000) (granting Plaintiff will, however, be given an opportunity to amend summary judgment to supervisory official on ground that his complaint to include allegations of personal no personal involvement in constitutional violation shown involvement regarding the remaining defendants,

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in F.Supp.2d, 2011 WL 3608475 (W.D.N.Y.)

(Cite as: 2011 WL 3608475 (W.D.N.Y.))

where defendant merely ignored prisoner's letter of remaining defendants.

complaint); and Pritchett v. Artuz, No. 99 Civ.

3957(SAS), 2000 WL4157, at *6 (S.D.N.Y. Jan. 3, 2000) APPOINTMENT OF COUNSEL (finding no personal involvement and thus no § 1983 liability where supervisory official ignored prisoner's letter Plaintiff has filed a motion for appointment of counsel of complaint). (Docket No. 3). There is insufficient information before

the Court at this time to make the necessary assessment of plaintiffs claims under the standards promulgated by *3 Plaintiff will be given an opportunity to file an amended complaint. In his amended complaint, plaintiff is Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997), directed to provide allegations regarding the personal and Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986), involvement of each named defendant for his § 1983 as issue has yet to be joined. Therefore, plaintiffs motion for appointment of counsel is denied without prejudice at claim. In the facts section of his amended complaint, plaintiff should allege what each defendant did or did not this time. It is the plaintiff's responsibility to retain an do and when the events occurred. Plaintiff may also add to attorney or press forward with this lawsuit pro se. 28 his amended complaint the allegations he attempted to U.S.C. § 1654. present in his motion to amend the complaint. If plaintiff CONCLUSION does not file an amended complaint, § 1983 claims against defendants Wright; Vonhagn; Director of Health Services Because plaintiff has met the statutory requirements Southport; Oakes; Canefield; Weaver; Clement; Director of 28 U.S.C. § 1915(a) and filed an Authorization, his request to proceed in forma pauperis is granted. of Health Services Lakeview; Director of Health Services Levitt; Post; and Wilcox will be dismissed, and § 1983 For the reasons set forth above, plaintiff's § 1983 claims against only Weed and Obertean will proceed. claims against Wright; Vonhagn; Director of Health

Services Southport; Oakes; Canefield; Weaver; Clement; Director of Health Services Lakeview; Director of Health ADA AND REHABILITATION ACT CLAIMS

Services Levitt; Post; and Wilcox are subject to dismissal. Plaintiff states that he is bringing claims based on the Further, for the reasons stated above, ADA and ADA and the Rehabilitation Act against the defendants. Rehabilitation Act claims against all defendants except defendant Wright in his official capacity are subject to Contrary to claims brought under 42 U.S.C. § 1983, claims under the ADA and the Rehabilitation Act cannot dismissal. be brought against state employees in their individual

capacities. See Garcia v. S.U.N.Y. Health Sciences Ctr. of Plaintiff will be given an opportunity to file an Brooklyn, 280 F.3d 98, 107 (2d Cir.2001). The proper amended complaint, as directed above by September 16, party to sue under the ADA or the Rehabilitation Act is 2011, in which he includes the necessary allegations the public entity responsible for the acts, or a public regarding his claims and in a manner that complies with official acting in his official capacity. Butterfield v. New Rules 8 and 10 of the Federal Rules of Civil Procedure. York State, No. 96Civ.5144(BDP)LMS, 1998 WL 401533 Plaintiff is advised that an amended complaint is intended (S.D.N.Y. July 15, 1998). to completely replace the prior complaint in the action. Plaintiff will be given an opportunity to amend his “It is well established that an amended complaint complaint to name proper parties, namely the public entity ordinarily supersedes the original and renders it of no legal responsible for the acts, or a public official acting in his effect.” Arce v. Walker, 139 F.3d 329, 332 n. 4 (2d official capacity, to support claims under the ADA and Cir.1998) (quoting International Controls Corp. v. Vesco, Rehabilitation Act. If plaintiff does not file an amended 556 F.2d 665, 668 (2d Cir.1977)); see also Shields v. complaint that addresses this issue, the Court will allow Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d the ADA and Rehabilitation Act claims to proceed solely Cir.1994). Therefore, plaintiffs amended complaint must against defendant Wright in his official capacity and will include all of the allegations against each of the dismiss ADA and Rehabilitation Act claims against all defendants regarding the claims he seeks to raise in this

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in F.Supp.2d, 2011 WL 3608475 (W.D.N.Y.)

(Cite as: 2011 WL 3608475 (W.D.N.Y.)) amended complaint, so that the amended complaint may proceed solely against defendant Wright in his official stand alone as the sole complaint in this action which the capacity and will be dismissed against all other defendants must answer. defendants;

Plaintiff is forewarned that if he fails to file an FURTHER, that plaintiff's motion to amend the amended complaint as directed above by September 16, complaint (Docket No. 6) is denied as moot; 2011, § 1983 claims against defendants Wright; Vonhagn; Director of Health Services Southport; Oakes; Canefield; FURTHER, plaintiff's motion for appointment of Weaver; Clement; Director of Health Services Lakeview; counsel (Docket No. 3) is denied.

Director of Health Services Levitt; Post; and Wilcox will

be dismissed, and § 1983 claims against only Weed and SO ORDERED. Obertean will proceed forward. Further, if plaintiff does W.D.N.Y.,2011.

not file an amended complaint as directed, the ADA and

Rehabilitation Act claims will proceed solely against

defendant Wright in his official capacity and will be Parra v. Wright

dismissed against all other defendants. Not Reported in F.Supp.2d, 2011 WL 3608475

(W.D.N.Y.)

Further, for the reasons discussed above, plaintiff's END OF DOCUMENT

motion to amend his complaint is denied as moot and his

motion for appointment of counsel is denied.

ORDERS

IT HEREBY IS ORDERED, that plaintiffs motion to

proceed in forma pauperis (Docket No. 2) is granted;

FURTHER, that plaintiff is granted leave to file an

amended complaint as directed above by September 9,

2011;

FURTHER, that the Clerk of the Court is directed to

send to plaintiff with this order a copy of the original

complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint;

FURTHER, that in the event plaintiff fails to file an

amended complaint as directed above by September 9,

2011, plaintiff's § 1983 claims against Wright; Vonhagn; Director of Health Services Southport; Oakes; Canefield;

Weaver; Clement; Director of Health Services Lakeview;

Director of Health Services Levitt; Post; and Wilcox will

be dismissed, and § 1983 claims against only Weed and Obertean will proceed forward.

FURTHER, that in the event plaintiff fails to file an

amended complaint as directed above by September 9,

2011, plaintiff's ADA and Rehabilitation Act claims will

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

Not Reported in F.Supp.2d, 2007 W L 2163186 (N.D.N.Y.)

(Cite as: 2007 W L 2163186 (N.D.N.Y.))

r e g a r d i n g t h e a b o v e a l l e g a t i o n s o f discrimination. See Dkt. No. 1 at 19. Plaintiff alleges that he received the letter on April 13,

Only the W estlaw citation is currently available. 2007. See id. at 17. United States District Court, II. DISCUSSION N.D. New York. Vladimir ZUK, Plaintiff, Plaintiff names Esteban G onzalez, Vincent v. W asilewski, Kevin Brisson, Thomas Metz, Anthony Esteban GONZALEZ, Captain, Onondaga County Callisto, Richard Carbery, Kevin W alsh, and W arren Justice Center; Vincent W asilewski, Assistant Chief, Darby as Defendants. However, it is well-established that Onondaga County Justice Center; Kevin Brisson, Title VII does not create individual liability for Captain, Onondaga County Justice Center; Thomas violations of its terms. Tomka v. Seiler Corp., 66 F.3d

Metz, Lieutenant-Personnel Section; Anthony Callisto, 1295, 1313-17 (2d Cir.1995). Only the employer may former Chief-Custody Division (Retried June, 2006); be held liable, and is in fact held vicariously liable for Richard Carbery, Chief-Custody Division, Onondaga a hostile work environment created by a supervisor with County Justice Center; Kevin W alsh, Sheriff of immediate or successively higher authority over the Onondaga County; and W arren Darby, Undersheriff of victimized employee. Burlington Indus., Inc. v. Ellerth, Onondaga County, Defendants. 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 No. 5:07-CV-732 (FJS/DEP). (1998); Faragher v. Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). July 26, 2007. Vladimir Zuk, Syracuse, NY, pro se. Linder v. City of N.Y., 263 F.Supp.2d 585, 594-95 (E.D.N.Y.2003). M EM ORANDUM -DECISION AND ORDER Therefore, the Court dismisses the above-named SCULLIN, Senior Judge. Defendants from this action in their personal capacity. I. INTRODUCTION There Clerk of the Court has sent Plaintiff's The question remains, however, whether Plaintiff may complaint to the Court for its review. Dkt. No. 1. sue the aforesaid Defendants in their “official” capacity as Plaintiff filed his complaint pursuant to Title VII of the representatives of the County of Onondaga. Civil Rights Act of 1964, as amended and codified at 42 U.S.C. § 2000e et seq., and he has paid the filing fee for “[T]he Second Circuit has left open the question this action. whether [Title VII] suits may be maintained against In his complaint, Plaintiff alleges, among other things, employees in their ‘official capacity[.]’ “ Guzman v. that, while he was an employee of Onondaga County at the Round Hill Country Club, Inc., No. 3:03CV0851, 2003 O nondaga C ounty Justice Center, D efendants W L 23212750, at *1 (D.Conn. Jan. 30, 2003) (citing discriminated against him in the course of his employment, Hafez v. Avis Rent A Car System, Inc., No. 99-9459, denied him promotion, and retaliated against him on the 2000 W L 1775508, *2 (2d Cir. Nov. 29, 2000)). basis of his national origin. FN1 However, “most circuits either have rejected such suits outright, on the ground that employees cannot incur FN1. Plaintiff attached to his complaint a copy of personal liability under Title VII, or have treated such the right-to-sue letter that the Equal Employment suits as an action against the employer.” Id. (footnote Opportunity Commission (“EEOC”) issued Not Reported in F.Supp.2d, 2007 W L 2163186 (N.D.N.Y.)

(Cite as: 2007 W L 2163186 (N.D.N.Y.)) and citations omitted). This has been the “trend” in the Lorimar-Telepictures Corp., 1989 W L 120083, *6 district courts within the Second Circuit as well. See id. (S.D.N.Y. Oct. 5, 1989) (non-party over whom court at *1, n. 4 (citing McBride v. Routh, 51 F.Supp.2d 153, could exercise personal jurisdiction would be added as 156-57 (D.Conn.1999) (citing cases)). defendant sua sponte under [Federal Rule of Civil Procedure] 21 “in the interest of the efficient Simpson v. N.Y. State Dep't of Civil Serv., No. administration of justice”)). 02-CV-1216, 2005 W L 545349, *9 (N.D.N.Y. Mar. 1, 2005). FN2. Onondaga County, as the employer, is the proper defendant in a Title VII action. 42 For example, in Bottge v. Suburban Propane, 77 U.S.C. §§ 2000e and 2000e-2. F.Supp.2d 310 (N.D.N.Y.1999), the court held “that [the Second Circuit's] individual liability bar applies to III. CONCLUSION individual defendants in their official capacities, as well as

to situations where the plaintiff seeks prospective After carefully reviewing the entire file in this case and the applicable law, and for the reasons stated herein, injunctive relief against such individuals, under ... Title VII[.]” Id. at 313. The court explained further that “[t]he the Court hereby official/personal capacity distinction seems misplaced O R DER S that Esteban G onzalez, V incent since it would place this Court in the position of holding W asilewski, Kevin Brisson, Thomas Metz, Anthony someone liable without providing Plaintiff with a remedy Callisto, Richard Carbery, Kevin W ash, and W arren at law.” Id.; see also Gray v. Shearson Lehman Bros., Darby are dismissed as Defendants in this action; and the Inc., 947 F.Supp. 132, 136 (S.D.N.Y.1996) (dismissing Court further Title VII claims against individuals sued in their official capacities). The Court finds the courts' reasoning in ORDERS that Onondaga County is sua sponte Simpson and Bottge persuasive and, therefore, dismisses substituted as a Defendant in this action in place of the Plaintiff's Title VII claims against the individual individual Defendants pursuant to Rule 21 of the Federal Defendants in their official capacities as well. Rules of Civil Procedure; and the Court further Since the Court has dismissed all of the claims ORDERS that the Clerk of the Court shall add against all of the individual Defendants, no Defendant “Onondaga County” as a Defendant to the docket of this remains. Nonetheless, to the extent that Plaintiff has action; and the Court further named the individual Defendants in their official

capacities, he has in essence named Onondaga County-his ORDERS that the Clerk of the Court shall issue a actual employer-as a Defendant. See Ciancio v. Gorski, summons and forward it to Plaintiff, along with a packet No. 98-CV-0714E, 1999 W L 222603, *1 (W .D.N.Y. Apr. containing General Order 25, which sets forth this 14, 1999) (holding that because the county employer District's Civil Case Management Plan. The Court advises would pay any judgment in an official capacity suit, the Plaintiff that it is his responsibility to serve Defendant county employer was the proper defendant). Construing immediately with the summons, a copy of his complaint, Plaintiff's complaint liberally in light of his pro se status, and a packet containing General Order 25 in accordance see Haines v. Kerner, 404 U.S. 519, 520 (1972), and in with the Federal Rules of Civil Procedure; and the Court the interest of judicial economy, the Court will sua sponte further substitute Onondaga County as the sole Defendant in place

of the individually named Defendants. See Ciancio, 1999 ORDERS that Defendant or its counsel shall file a W L 222603, at *1 (citing [Fed.R.Civ.P.] 21 (“[p]arties formal response to Plaintiff's complaint as provided for in may be dropped or added by order of the court on motion the Federal Rules of Civil Procedure subsequent to service of any party or on its own initiative at any stage of the of process on Defendant; and the Court further action and on such terms as are just”); Cimemotion NV v.

Not Reported in F.Supp.2d, 2007 W L 2163186 (N.D.N.Y.)

(Cite as: 2007 W L 2163186 (N.D.N.Y.))

ORDERS that Plaintiff shall immediately serve a

copy of this Order upon any Defendant whom he has

already served with process in this action; and the Court

further

ORDERS that the parties must accompany any paper

that they send to the Court or to the Clerk of the Court

with a certificate setting forth the date on which they

mailed a true and correct copy of the same to all opposing

parties or their counsel. The Clerk of the Court shall return

to the party who sent it any letter or other document that

the Court or the Clerk of the Court receives that does not

include a certificate of service that clearly states that the

party served an identical copy on all opposing counsel.

Plaintiff shall also comply with any requests of the Clerk's

Office for any documents that are necessary to maintain

this action. All motions shall comply with this District's

Local Rules; and the Court further ORDERS that the Clerk of the Court shall serve

a copy of this Order on Plaintiff in accordance with the

Local Rules.

IT IS SO ORDERED.

N.D.N.Y.,2007.

Zuk v. Gonzalez

Not Reported in F.Supp.2d, 2007 W L 2163186

(N.D.N.Y.)

END OF DOCUMENT

return him to the District of Columbia to face criminal charges. According to allegations in plaintiff's original complaint (“Orig.Compl.”), on February 6, 1996, Special Only the W estlaw citation is currently available. Agent Tucker of the Federal Bureau of Investigation United States District Court, (“FBI”), and Detectives Reed and Young of the W ashington, D.C. Metropolitan Police Department E.D. New York. (“D.C.Police”), wielding high powered guns and Jasper L. DOCKERY, Plaintiff, accompanied by dogs, “invaded plaintiff's family's v. [apartment] building” at 2127 Pitkin Avenue, Brooklyn, Nathan TUCKER, et al., Defendants. New York (“the Premises”), without announcing their No. 97-CV-3584 (ARR). presence, demanding admission, or presenting a warrant. Orig. Compl. ¶¶ IV(1-3). In the process of arresting Sept. 6, 2006. plaintiff, the agent and officers allegedly cut padlocks off Jasper Lloyd Dockery, Atlanta, GA, pro se. the door to the downstairs grocery store, broke down the building's main door with a sledgehammer, shot a dog with Gail A. Matthews, United States Attorneys Office, a tranquilizer gun, and broke into plaintiff's grocery store Brooklyn, NY, for Nathan Tucker. and apartment, as well as the apartments of three neighboring tenants. Id. ¶¶ IV(1-2). Plaintiff also claimed, E. David W oycik, Sanders Sanders & Block, P.C., among other things, that his arrest was false and Mineola, NY, for Defendants. “pretextual,” id. ¶ IV(2, 4), and that, as a result of defendants' actions, he sustained property damage and loss

REPORT AND RECOMMENDATION of income and liberty, and his family suffered psychological damage. Id. ¶¶ IV(1-2, 4, 9). Plaintiff ROANNE L. MANN, United States Magistrate Judge. demanded damages in the amount of $5,000,000, plus Currently pending before this Court, on a referral $800 per day of his confinement. Id. ¶ IV(12). from the Honorable Allyne R. Ross, are two sets of After defendants Reed and Young filed answers and defense motions to dismiss or for summary judgment with Tucker and several other defendants (since dismissed from respect to the Third Amended Complaint (“3d Am. the case) filed dispositive motions, plaintiff moved for Compl.”) of pro se plaintiff Jasper Dockery (“Dockery” or leave to amend his original complaint. The first amended “plaintiff”). One set of motions was filed by Special Agent complaint (“1st Am. Compl.” [# 21] ) FN1 concerned an Nathan Tucker (“Tucker”), and the other by defendants earlier incident that took place on October 23, 1995, also the District of Columbia (“the District”), Pamela Reed at the Premises. That pleading alleged that during the (“Reed”), Phineas Young (“Young”), Alan Dreher earlier search, defendants Tucker, Reed, Young, and John (“Dreher”), and Larry Soulsby (“Soulsby”) (collectively, Doe defendants-unnamed FBI agents, D.C. detectives, and “the D.C. defendants”). Plaintiff has cross-moved for police officers with the New York City Police Department summary judgment on all claims against both sets of (“NYPD”)-engaged in an illegal search of the Premises. defendants. For the reasons detailed below, this Court See id. ¶¶ 4-17. In particular, plaintiff asserted that the recommends that defendants' motions be granted in part defendants: (1) searched the grocery store, plaintiff's and denied in part, and that plaintiff's cross-motions for apartment, and the other apartments in the Premises, from summary judgment be denied in their entirety. which assorted items were later found to be missing, see PROCEDURAL HISTORY id. ¶¶ 9-16; (2) broke down doors, cut padlocks, and severely damaged walls, ceilings, electrical wiring, and The present action arises out of two attempts by plumbing throughout the Premises, see id.; (3) “set a various law enforcement officers to arrest plaintiff and police attac[k] dog loose” in plaintiff's apartment, judgment on all claims against him. See id. at 32. terrorizing plaintiff's family, see id. ¶ 11; (4) forced Accordingly, “[t]he only remaining claims [from] plaintiff's family out of their apartment during a four-hour plaintiff's original complaint are his Fourth Amendment claims against Detectives Reed and Young.” See id. FN3 search, see id. ¶ 13; (5) tear-gassed the property, see id. ¶ 17; and (6) intentionally left the Premises unsecured upon their departure, see id. ad damnum clause. Charging FN3. Plaintiff's three amended complaints added defendants with having perpetrated an illegal search (in claims relating to the October 1995 search but violation of the Fourth Amendment), and having deprived did not replead the Fourth Amendment claims plaintiff of his personal property without due process of asserted in his original complaint and arising out law (in violation of the Fifth and Fourteenth of the February 1996 search. In allowing plaintiff Amendments), see id. ¶¶ 18-19, plaintiff sought, in his first to file his third amended complaint, the Court amended complaint, a declaratory judgment, as well as directed plaintiff to specify whether he still $73,490 in property damage, $80,000 in damages from wished to pursue the only outstanding claim from each defendant for his daughter's emotional distress, and his original complaint-his Fourth Amendment $280,000 in punitive damages from each defendant. See claim against Reed and Young for the 1996 id. ad damnum clause. search. 4/28/05 Memorandum and Order

(“4/28/05 M & O” [# 207] ) at 15-16. On May FN1. For clarity, court filings will be identified 14, 2005, plaintiff wrote the Court requesting in this opinion by their corresponding numbers that this claim be considered in conjunction with on the docket sheet. W here the parties have not his third amended complaint. See Notice to Court paginated their submissions, citations will be to to Keep Claims against Reed and Young Active the page numbers assigned through Electronic [# 221]. Accordingly, contrary to the D.C. Case Filing. defendants' assumption ( see Memorandum of

Law of Defendants District of Columbia, Pamela FN2. The first amended complaint vaguely Reed, Phineas Young, Larry Soulsby and Alan asserted that the search occurred from “October Dreher in Support of their Motion to Dismiss or through November of 1995.” 1st Am. Compl. ¶¶ Alternatively for Summary Judgment (“D.C. 3 -1 0 . T he sp ec ific d a te -O c to b e r 2 3 , Mem.” [# 227] ) at 3), the illegal search claim 1995-emerged in discovery and plaintiff has against Reed and Young arising out of the events included that date in his third amended complaint of February 1996 is still in the case.

(“3d Am. Compl.” [# 154] ). See 3d Am. Compl.

at 4-7; Transcript of 8/18/99 Deposition In that same opinion, Judge Ross granted plaintiff Testimony of Jasper Dockery (“Dockery Dep.”) permission to file his first amended complaint (concerning at 64-65 (submitted as Exhibit E to Declaration the events of October 23, 1995). See id. at 31-32. of Assistant U.S. Attorney Gail A. Matthews in Following discovery, plaintiff submitted a proposed Support of Agent Tucker's Motion to Dismiss or second amended complaint (“2d Am. Compl.” [# 81] ), for Summary Judgment on All Claims in the dated July 26, 1999, and sought permission to assert new Third Amended Complaint (“Matthews Decl.” [# claims on behalf of his children for damages that they 219] ). allegedly suffered as a result of the searches. Plaintiff also

requested leave to replead certain claims against Tucker, On September 24, 1998, Judge Ross dismissed Reed, and Young, and to add several defendants to the most of plaintiff's claims from the original complaint, action, including the District and D.C. police officials Dreher and Soulsby. See generally 2d Am. Compl. In including the false imprisonment and false arrest claims against Tucker, Reed, and Young. 9/24/98 Opinion & an Opinion and Order dated June 18, 2003 (“6/18/03 Op.” Order [of Judge Allyne R. Ross] (“9/24/98 Op.” [# 44] ) [# 152] ), Judge Ross adopted this Court's 3/26/03 Report at 31-32. She also granted Tucker's motion for summary and Recommendation (“3/26/03 R & R” [# 148] ) and granted plaintiff permission to amend his complaint to complaint for the third time was still pending, assert claims against the District, as well as against Dreher plaintiff also filed multiple dispositive motions and Soulsby in their official capacities, and otherwise and applications against defendants with respect denied plaintiff's motion to further amend his complaint. to their alleged discovery practices, all of which

were denied by this Court. See generally 3/4/05 FN4. Dreher is the former Commander of the Report and Recommendation [# 200]; 3/7/05 D.C. Police's Homicide Division; Soulsby is the Memorandum and Order [# 202]; 3/30/05 former Chief of Police. D.C. Mem. [# 227] at 7. Memorandum and Order [# 206].

Thereafter, this Court reopened discovery for the On April 28, 2005, this Court granted plaintiff's limited purpose of permitting plaintiff to serve discovery motion to amend his complaint for the third time. Noting demands on Dreher and Soulsby. See 6/27/03 that defendants had not opposed several of plaintiff's Memorandum and Order (“6/27/03 M & O” [# 155] ). proposed claims, the Court permitted plaintiff to proceed Prior to the close of this supplemental discovery period, with his individual capacity claims against Dreher and plaintiff moved to amend his complaint for a third time, Soulsby; tort claims against Tucker, Reed, Young, and the and submitted a proposed third amended complaint, District; and due process claims against Dreher, Soulsby, which, liberally construed, contains the following new and the District. The Court also permitted plaintiff to allegations concerning the October 1995 search: (1) a proceed with his claim for loss of business, over demand for damages for loss of business income, see 3d defendants' objection. See 4/28/05 M & O [# 207] at 9-15. Am. Compl. at 17-18 [# 154]; FN5 (2) common law tort In response to defendants' concern that plaintiff's loss of claims FN6 against Tucker, Reed, Young, and the District, business claim would unduly prejudice the defense and see id. at 8, 10; (3) claims against Dreher and Soulsby, in prolong litigation through potentially costly discovery, the their individual capacities, for violations of the Fourth Court set a briefing schedule for dispositive motions with Amendment and plaintiff's due process rights, see id. at 1, respect to those claims for which discovery was complete, 12-16; and (4) due process claims against Dreher and and deferred discovery on the loss of business claims until Soulsby in their official capacities and against the District, the resolution of any dispositive motions related to the third amended complaint. Id. at 13, 19. FN8 see id. at 13-14, 15-16. Plaintiff also sought to replead the claims already asserted in his first two amended complaints, concerning the 1995 search: his Fourth FN8. During the pendency of plaintiff's motion Amendment and his due process claims against Tucker, to amend his complaint for the third time, the Reed, and Young, see 3d Am. Compl. at 9-12; his Fourth D.C. defendants filed a procedurally defective Amendment claim against the District pursuant to Monell dispositive motion, which this Court declined to v. Department of Social Services, 436 U.S. 658, 690, 98 address; the D.C. defendants were granted leave S.Ct. 2018, 56 L.Ed.2d 611 (1978), see 3d Am. Compl. at to file a revised motion. 4/28/05 M & O [# 12-15; and his Fourth Amendment official capacity claims 207] at 16-19. against Dreher and Soulsby, see id. at 12, 14. All

defendants opposed the filing of the proposed third On M ay 27, 2005, Tucker again moved to dismiss or amended complaint or portions thereof. FN7 for summary judgment. See generally Defendant Special Agent Nathan Tucker's Memorandum of Law in Support

FN5. Unless otherwise indicated, references to of His Motion to Dismiss or in the Alternative for the third amended complaint are to pages, not Summary Judgment on All Claims Asserted in the Third paragraphs. Amended Complaint (“Tucker Mem.” [# 215] ). The D.C.

defendants' motion to dismiss or for summary judgment FN6. See infra note 13. was filed soon after, on May 31, 2005. See generally D.C. Mem. [# 227]. Plaintiff thereafter opposed the motions FN7. W hile plaintiff's motion to amend his filed by Tucker and the D.C. defendants, adding cross-motions for summary judgment against both sets of Facts, dated 11/28/05 (“Pl. 56.1 (D.C.)” [# 265] ). defendants. See generally Plaintiff Dockery's Opposition

to Defendant Tucker's Motion for Summary Judgment and FACTUAL OVERVIEW [ ] Cross-Motion for Summary Judgment on Complaint,

filed 8/3/05 (“Pl.Mem.(Tucker)” [# 241] ); Plaintiff I. Defendants' Version

Dockery['s] Opposition to Defendants, District of Defendants proffer evidence of the following Columbia[,] Larry Soulsby, Alan Dreher, Pamela Reed, sequence of events. On August 12, 1995, D.C. Detective and Phineas Young's M otion for Summary Judgment and Phineas Young filed an affidavit in support of an arrest Plaintiff['s] Cross-Claim against Adverse Party warrant alleging that plaintiff had obstructed justice by Defendants, for Summary Judgment, filed 8/18/05 intimidating and threatening to kill the family of a grand jury witness who was expected to testify about plaintiff's (“Pl.Mem. (D.C.)” [# 246] ). On September 8 and 9, 2005, respectively, both sets of defendants replied to plaintiff's involvement in the April 1995 murder of one Melvin submissions. See generally Reply Memorandum of Jones. See Affidavit of Phineas Young in Support of Defendants, District of Columbia, Pamela Reed, Phineas Motion to Dismiss (“Young Aff.” [# 225] ) ¶ 2; Affidavit in Support of an Arrest W arrant [# 217] (submitted as Young, Larry Soulsby and Alan Dreher to Plaintiff Dockery's Opposition Papers and in Further Support of Exhibit B to the Declaration of Special Agent Nathan their Motion to Dismiss or Alternatively for Summary Tucker in Support of Summary Judgment Motion Judgment, dated September 8, 2005 (“D.C. Reply” [# 257] [“Tucker Decl.”] ). A warrant for plaintiff's arrest on this charge was issued by the D.C. Superior Court on August ); Defendant Special Agent Nathan Tucker's Reply Memorandum of Law in Further Support of Motion to 12, 1995, and was reapproved on August 14, 1995. See Dismiss or in the Alternative for Summary Judgment on Tucker 56.1 [# 216] ¶ 6; D.C. 56.1 [# 224] ¶ 2; Tucker All Claims Asserted in the Third Amended Complaint, Decl. [# 217] Ex. B.

dated September 9, 2005 (“Tucker Reply” [# 258] ). On October 18, 1995, the FBI's W ashington Field

Office forwarded to the FBI's New York Division a lead FN9. The D.C. defendants' memorandum of law referencing the obstruction of justice warrant and setting was submitted twice electronically and appears forth plaintiff's suspected whereabouts. See [FBI Lead] as docket entries # 227 and # 228. (Tucker Decl. Ex. A [# 217] ). The lead listed as

enclosures a photograph of plaintiff and the 1995 warrant, On November 9, 2005, this Court provided plaintiff and further advised that plaintiff “may be located in the with a (second) copy of its Local Civil Rules and directed vicinity of ‘3 Star Grocery,’ 2127 Pitkin Avenue, him to comply with Local Rule 56.1 by submitting Brooklyn, New York, telephone numbers 718-495-4730 statements of undisputed facts in response to those offered and 800-881-4730.” Id.

by Tucker and the D.C. defendants. See 11/9/05 Order [of

Judge Mann] [# 261] at 3; Defendant Special Agent On October 23, 1995, on the basis of the lead and Nathan Tucker's Statement of Undisputed Facts Pursuant following a request by Detective Reed that the FBI conduct a “turn-up” for Dockery at the Brooklyn address to Local Civil Rule 56.1 (“Tucker 56.1” [# 216] ); D.C. Defendants Statement of Undisputed Facts Pursuant to on file ( see Affidavit of Pamela Reed in Support of Local Civil Rule 56.1 (“D.C. 56.1” [# 224] ). Plaintiff Motion to Dismiss (“Reed Aff.” [# 226] ¶¶ 3-4; [Trial submitted the requested Rule 56.1 Statements on Testimony of Pamela Reed] (Ex. J. to Pl. Mem. (Tucker) [# 241] at 78)), an FBI Fugitive Task Force-comprised of December 9 and 22, 2005, respectively. Plaintiff's Statement of M aterial Facts in Issue in Response to s e v e n a g e n t s i n c l u d i n g T u c k e r a n d S a m Statement of Material Facts to W hich Defendant Tucker Alston-commenced surveillance at the Pitken Avenue Contends There Is No Genuine Dispute, dated 11/28/05 address, “where Dockery was suspected of dwelling.” Tucker Decl. [# 217] ¶ 7. Reed and Young deny that they (“Pl. 56.1 (Tucker)” [# 264] ); Plaintiff's Response to Statement of Material Facts as to W hich DC[ ] Defendants were in New York. Reed Aff. [# 226] ¶ 4; Young Aff. [# Contend[ ] There Is No Genuine Issue and/or Undisputed 225] ¶ 4. During the course of this surveillance, Tucker

claims to have seen plaintiff with a woman, later identified as Denise Sutton, in the window of a second-floor 56.1 [# 216] ¶¶ 65-67.

apartment. See Tucker Decl. [# 217] ¶ 8; [Undated

Excerpt of Testimony of Special Agent Nathan Tucker, On February 6, 1996, another FBI Task Force, D.C. Superior Court] (attached to Plaintiff's Motion in including Tucker, conducted surveillance of the Premises. Opposing Defendant [L]egal [A]id Attorney M otion [....] Tucker Decl. [# 217] ¶¶ 15-16. Tucker observed plaintiff (“Mot. Opposing Legal Aid” [# 32] )) at 222. standing in the doorway, but Denise Sutton again refused

to open the door. Id. ¶ 16. Following another forcible After announcing their purpose and authority and entry and search, plaintiff was eventually located in a being denied entry by Sutton, the FBI Task Force forced hiding space beneath a dresser and carpet between the entry into the building with a battering ram. Tucker Decl. floorboards of the second floor and the ceiling of the first [# 217] ¶ 9; Affidavit of Denise Sutton (“Sutton Aff.”) floor, and he was placed under arrest. Id. ¶¶ 17-18; see (Matthews Decl. [# 219] Ex. H) ¶ 3. Upon entry, the [Undated Excerpt of Testimony of Special Agent Nathan agents encountered a pit bull and sought the assistance of Tucker, D.C. Superior Court] (Mot. Opposing Legal Aid the New York Police Department's Emergency Services [# 32] ) at 231-34. Plaintiff was then taken to the FBI's Unit (“NYPD-ESU”) in controlling the animal. Tucker Manhattan Office, where he was questioned by D.C. Decl. [# 217] ¶ 9. NYPD-ESU officers thereafter Detectives Reed and Young. See Reed Aff. [# 226] ¶ 5; commenced a search of the basement, grocery store, and Young Aff. [# 225] ¶ 5. Following plaintiff's arrest, the residential apartments that comprised the Premises. Id. ¶ Clerk of the D.C. Superior Court was notified that the 10. During this search, the officers cut holes in the ceiling August 1995 warrant for plaintiff's arrest could be vacated. of a third-floor apartment and placed tear gas inside to See Declaration of Assistant U.S. Attorney Kenneth Kohl render the area safe for inspection. Id. ¶ 11; [Undated in Support of Special Agent Tucker's Motion for Summary Excerpt of Testimony of Special Agent Nathan Tucker, Judgment on the Third Amended Complaint (“Kohl Decl.” D.C. Superior Court] (Mot. Opposing Legal Aid [# 32] ) [# 218] ) ¶ 14. The Clerk thereafter placed an “X” in red at 225-26. Inside the crawl space, the officers located ink across the face of the warrant and wrote the word identification belonging to plaintiff. Tucker Decl. [# 217] “VACATE” upon it. Id.

¶ 11. Having failed to locate Dockery, the Task Force and

NYPD-ESU discontinued their surveillance and search. Id. II. Plaintiff's Version

Prior to leaving the Premises, Tucker, accompanied by

Agent Alston, entered the Premises for the first time to Plaintiff, relying in part on hearsay, disputes the ensure that Dockery was not there. Id. ¶ 12. defense version of events. He maintains that the warrant

and the FBI lead on which defendants rely for the 1995 entry into and search of the Premises were either falsely Following the search, the Task Force provided Sutton with padlocks and keys to replace the locks that obtained or fraudulently manufactured after the search. had been removed from the grocery store's door by the See Plaintiff['s] Affidavit in Support of Cross-Motion for NYPD-ESU, as well as a phone number with instructions Summary Judgment (“Pl. Aff.” [# 242] ) ¶ 4; Pl. Mem. (Tucker) [# 241] at 10-11. Plaintiff further contends that stating how the landlord could report and make a claim for any damage to the property. Id. ¶ 13. Following the he was not at the Premises during the 1995 incident and, search, Michael Barrett, an acquaintance of Sutton's, thus, disputes that Tucker's sighting of him justified replaced the front door of the building. Sutton Aff. ¶ 9 defendants' forcible entry. Pl. 56.1 (Tucker) [# 264] ¶ 16; Dockery Dep. [# 219] at 45-46 (Matthews Decl. Ex. (Matthews Decl. [# 219] Ex. H). Defendants maintain that, as a consequence of the search, there was minimal damage E). Dockery likewise challenges defendants' description of to the front door and damage to the ceilings of a the search as one performed exclusively by the NYPD. third-floor apartment. See id. ¶ 7; Tucker 56.1 ¶¶ 20, 23. Specifically, plaintiff argues that Tucker, Reed, and Young were personally involved in the 1995 forced entry Defendants deny that any other property was damaged or caused to be missing as a result of the conduct of law into and search and destruction of the Premises, as enforcement officers at the scene. Sutton Aff. ¶ 7; Tucker evidenced by Reed and Young's own alleged admissions

during a conversation with plaintiff following his arrest in February 1996. See Pl. 56.1 (D.C.) [# 265] ¶ 11; 7/5/01

Affidavit of Plaintiff (“7/5/01 Pl. Aff.” [# 241] ) at 2-3. FN10. As previously noted, see supra note 3, the W hile claiming not to have been present during the 1995 D.C. defendants erroneously assume that plaintiff search, Dockery also disputes the degree of damage has abandoned his claim pertaining to the 1996 caused by the search, and contends that defendants broke search, and they thus have not moved against that several interior apartment doors and two toilets, and claim.

intentionally left the doors of the Premises unsecured,

resulting in looting by third parties and the loss of FN11. Defendants seek dismissal or, in the plaintiff's personal and business property. See 3d Am. alternative, summary judgment on the Monell Compl. at 4-8. Dockery denies that Sutton was provided claims against the District. See D.C. Mem. [# with keys and locks to secure the store. See Pl. 56.1 227] at 8-13. As plaintiff cannot survive a (Tucker) [# 264] ¶ 22. motion for summary judgment on the Monell

PENDING MOTIONS claims, see infra pp. 54-57, this Court will assume that those claims are adequately pled. Liberally construing plaintiff's third amended

complaint, this Court has identified the following claims FN12. The D.C. defendants also argue that the against Tucker, all relating to the 1995 incident: a Court lacks personal jurisdiction over them. See common law tort claim; a claim for unauthorized search infra note 29.

and seizure in violation of the Fourth Amendment; and a

claim for deprivation of property without due process of DISCUSSION law. See 3d Am. Compl. at 8-10. Tucker seeks dismissal

of the tort and due process claims for failure to state a I. Defendants' Motions to Dismiss In evaluating whether to grant a motion to dismiss claim upon which relief may be granted and lack of subject matter jurisdiction, and seeks summary judgment pursuant to Rule 12(b)(6) of the Federal Rules of Civil on the Fourth Amendment claim. Procedure, the Court must accept all material factual Plaintiff also asserts a Fourth Amendment claim allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff. against Reed and Young for unauthorized search and seizure in connection with the events of 1996, FN10 in See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d addition to the following claims against the D.C. Cir.1994). Dismissal is warranted “only where it appears defendants for the events of 1995: common law tort claims beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” against Reed, Young, and the District; claims under 42 U.S.C. § 1983 against Reed and Young for unauthorized Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d search and seizure in violation of the Fourth Amendment; Cir.1991) (internal quotation marks and citation omitted). section 1983 claims against Reed and Young for W here, as here, a pro se plaintiff alleges civil rights deprivation of property without due process of law; and violations, “[t]his standard is applied with even greater force ....” Hernandez, 18 F.3d at 136. claims against Dreher and Soulsby (in both their individual and official capacities), and a Monell claim A. Tucker's Jurisdictional Defense against the District, for deprivation of property without Tucker moves for dismissal of the common law tort

due process, and violations of the Fourth Amendment. See claims against him for lack of subject matter 3d Am. Compl. at 10-16. The D.C. defendants move for jurisdiction. FN13 Tucker Mem. [# 215] at 2-8. This dismissal of the official capacity claims against Dreher and Soulsby; for dismissal or summary judgment on the Court agrees that the state law claims against Tucker Monell claims against the District; and for summary should be dismissed on this basis. FN13. As noted in this Court's 4/28/05 judgment on the due process, Fourth Amendment, and common law tort claims against the individual D.C. Memorandum and Order, these claims appear to defendants for the events of 1995. FN12 be brought under three possible theories of tort liability: conversion, trespass to chattels and/or

trespass to lands. 4/28/05 M & O [# 207] at v. Womble, No. 90 CIV. 0592(JSM ), 1990 W L 5-6 n. 5. 165738, at *2 (S.D.N.Y. Oct.18, 1990). “Under the Federal Tort Claims Act [ (“FTCA”), 28 Nor does plaintiff's allegation that Tucker U.S.C. §§ 1346(b), 2401(b), 2671-2680], “Government “committed an improper performance of his employees enjoy absolute immunity against common law duties,” 3d Am. Compl. at 8, deprive Tucker tort claims, and the only proper federal institutional of the protection of the FTCA. “The question defendant is the United States.” Marsden v. Fed. Bureau of whether the act was wrongful is a different of Prisons, 856 F.Supp. 832, 836 (S.D.N.Y.1994) (citing, one from whether the act occurred while the inter alia, United States v. Smith, 499 U.S. 160, 161-65, employee was acting within the scope of his 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) ). In order to employment.” Rivera v. United States, 928 obtain the protection of absolute immunity, a federal F.2d 592, 608 (2d Cir.1991). In language employee must establish that, at the time of the alleged particularly apt here, the Second Circuit held act, he “was acting within the scope of his office or in Rivera that, regardless of whether federal employment ....” 28 U.S.C. § 2679(d)(1); see also Smith, law enforcement officers “performed wrongful 499 U.S. at 161. Here, plaintiff's pleading alleges that acts, such as entering unannounced to execute Tucker “was [an] employee and/or agent of the Federal ... warrants or using excessively intrusive Bureau of Investigation, at all times pertinent to the claims means of executing the warrants, the execution asserted ...,” 3d Am. Compl. at 3, and that “[a]t the time of the warrants was nonetheless within the Defendant Tucker committed [the alleged torts] ... [h]e scope of their employment.” Id. at 608-09. was acting within the scope of his employment with[ ] ...

the Federal Bureau of Investigation ....” Id. at 8. Thus, As neither party disputes that Tucker was acting in plaintiff should have brought his common law tort claims the scope of his employment at the time of the alleged against the United States pursuant to the FTCA. See acts, see Tucker Mem. at 2-3; 3d Am. Compl. at 8, the Hightower v. United States, 205 F.Supp.2d 146, 154 Court should substitute the United States as the proper (S.D.N.Y.2002) (“Because the complaint expressly alleges defendant to plaintiff's tort claims, see 28 U.S.C. § that the individual defendants were each federal 2679(b)(1) (providing that suit against the United States employees ... acting within ‘the scope of their under the FTCA is the exclusive damages remedy for employment,’ ... any state law torts claims based on their common law torts committed by a federal employee acting conduct would be cognizable, if at all, only as a suit within the scope of his employment); Harbury v. Hayden, against the United States under the FTCA.”). FN14 Civil Action No. 96-438(CKK), 444 F.Supp.2d 19, 2006 W L 2212696, at *6 (D.D.C. Aug.1, 2006) (“[U]pon FN14. The fact that plaintiff sued Tucker only in challenge or a sua sponte inquiry, the federal court may his individual capacity, see 3d Am. Compl. at 1, determine independently whether [an] employee acted

does not destroy Tucker's immunity under the within the scope of employment and, therefore, whether to FTCA because Tucker was alleged to have acted substitute the federal government as the proper within the scope of his employment. See Smith, defendant.”), and to dismiss these claims as against 499 U.S. at 163 n. 3 & 173 (FTCA was designed Tucker. See Rivera v. Morris Heights Health Ctr., No. 05 to prevent federal employees from being sued in Civ. 10154, 2006 W L 345855, at *2 (S.D.N.Y. Feb. 14., their personal capacities for torts committed 2006); Asto v. Mirandona, 372 F.Supp.2d 702, 710-11 (E.D.N.Y.2005). FN15 while acting within the scope of their employment); accord Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir.1996); Konarski v. Brown, FN15. Plaintiff's argument that Tucker waived 293 F.Supp.2d 70, 72 (D.D.C.2003); Ramirez v. his objection to subject matter jurisdiction ( see Obermaier, No. 91 Civ. 7120(RPP), 1992 W L Pl. Mem. (Tucker) [# 241] at 4-6) is without 320985, at *7 (S.D.N.Y. Oct.28, 1992); Llarena merit, as challenges to subject matter jurisdiction may be raised at any time, and indeed may be given plaintiff's noncompliance with the exhaustion raised by the Court sua sponte. See Fed.R.Civ.P. requirement of the FTCA. Federal law provides that an 12(h)(3). individual may not institute an action in tort against the United States based on the acts or omissions of a federal

Although plaintiff maintains that Tucker's employee, “unless the claimant shall have first presented actions were performed within the scope of his the claim to the appropriate Federal agency and his claim employment, he argues that his claim is, shall have been finally denied by the agency in writing.” nevertheless, not governed by the FTCA 28 U.S.C. § 2675; see also 28 U.S.C. § 2401 (“A tort because Tucker's actions fall outside the scope claim against the United States shall be forever barred of the FTCA's “discretionary function unless it is presented in writing to the appropriate Federal exception” (“DFE”) to liability. Pl. Mem. agency within two years after such claim accrues ....”). (Tucker) [# 241] at 9-12. Under the DFE, the “This requirement is jurisdictional and cannot be waived.” United States cannot be found liable with Celestine v. Mt. Vernon Neighborhood Health Ctr., 403 respect to “[a]ny claim ... based upon the F.3d 76, 82 (2d Cir.2005) (citing McNeil v. United States, exercise or performance ... [of] a discretionary 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 function or duty on the part of a federal agency (1993) (affirming the dismissal of a pro se plaintiff's or an employee of the Government, whether or complaint for failure to comply with the FTCA's not the discretion involved be abused.” 28 exhaustion requirement), and Robinson v. Overseas U.S.C. § 2680(a); see United States v. Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994)); see Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, also Millares Guiraldes de Tineo v. United States, 137 113 L.Ed.2d 335 (1991). F.3d 715, 720 (2d Cir.1998). Plaintiff misconstrues the DFE, which carves Plaintiff does not (and indeed cannot) contend that he out an exception to governmental liability sought in writing and obtained an administrative where the conduct complained of involved disposition of his claim from the FBI before filing the discretionary functions, but does not create instant action. See generally Declaration of Richard M. liability on the part of federal officers for acts W alsh (Matthews Decl. [# 219] Ex. J). Thus, as this Court not encompassed within the DFE. Thus, even previously concluded ( see 3/26/03 R & R [# 148] at a s s u m i n g t h a t T u c k e r 's a c ts w e r e 15-16), plaintiff cannot now maintain an action in tort against the United States. Accordingly, plaintiff's tort nondiscretionary or contrary to FBI policy, the unavailability of the DFE would merely claim against the United States, like that against Tucker, remove one impediment to a claim against the should be dismissed for lack of subject matter jurisdiction. FN17 United States, but would not allow a tort claim against Tucker himself. See Berkovitz by Berkovitz v. United States, 486 U.S. 531, FN16. Plaintiff complains that, following the 546-47, 108 S.Ct. 1954, 100 L.Ed.2d 531 1995 search of the Premises, Tucker left (1988); Leone v. United States, 690 F.Supp. inadequate instructions regarding plaintiff's 1182, 1188 (E.D.N.Y.1988); see also Wilson administrative remedies. Pl. Mem. (Tucker) v. United States, 959 F.2d 12, 15 (2d [# 241] at 2. The burden is on plaintiff to plead Cir.1992) (stating that, when an exception to and prove that he timely complied with the the FTCA does not apply, “the federal statutory exhaustion requirement. See In re Agent government remains liable for the intentional Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d torts of [its] officers.”) (emphasis added). Cir.1987). W here, as here, the plaintiff invokes the doctrine of equitable tolling to excuse his Even allowing for this substitution, however, this dereliction, he must allege and establish (1) Court lacks jurisdiction over the tort claim asserted here, “extraordinary circumstances ‘beyond his

control’ ” that prevented him from timely filing opportunity, after the removal, to exhaust those his administrative claim, and/or (2) affirmative remedies.” Celestine, 403 F.3d at 83. conduct on defendant's part that concealed Specifically, the W estfall Act provides, in defendant's status as a federal actor and thus the relevant part, that where the United States is applicability of the FTCA. See Valdez ex rel. substituted as a defendant, the plaintiff has an Donely v. United States, 415 F.Supp.2d 345, additional 60 days to exhaust his administrative 349-50 (S.D.N.Y.2006); Bowman v. U.S. Postal remedies, provided his “claim would have been Serv., No. 02 Civ. 6138(SHS), 2003 W L timely had it been filed on the date the 1395821, at *3-4 (S.D.N.Y. Mar.20, 2003); see underlying civil action was commenced.” 28 generally Celestine, 403 F.3d at 83-84 U.S.C. § 2679(d)(5). (explaining the limited applicability of the equitable tolling doctrine in FTCA cases). As neither plaintiff nor Tucker has addressed Plaintiff's allegation of inadequate instructions is whether the W estfall Act applies in insufficient to warrant equitable tolling. See, e.g., non-removal cases and, if so, its impact on Valdez, 415 F.Supp.2d at 349-51 (rejecting plaintiff's tort claims, those issues are not now plaintiff's claim for equitable tolling where before the Court. See generally Rivera, 2006 plaintiff failed to set forth any facts in support of W L 345855, at *3 n. 1. his claim that defendants fraudulently concealed or kept plaintiff from learning of his cause of B. Standing

action against them); Van Eck v. Cimahosky, 329 F.Supp.2d 265, 269 (D.Conn.2004) (holding that At least one aspect of plaintiff's Fourth Amendment equitable tolling was not warranted on the basis claims is subject to dismissal. Liberally construing of defendant's allegedly improper notice of plaintiff's pleading, he appears to allege that the administrative decision); Bowman, 2003 W L constitutional rights of third parties were violated by 1395821, at *4-5 (rejecting pro se plaintiff's defendants' “unauthorized” entry into and search of the claim that equitable tolling was warranted where second-floor apartment of Ilma Davis (Apartment # 2R) FN18 and ground-floor apartment of plaintiff's children (1) several agencies had failed to assist him with his claim; (2) he was unable to obtain certain (Apartment # 1RR). See generally 3d Am. Compl. at 6-7. Citing this Court's Report and Recommendation of medical records pertaining to his claim, and (3) he was blind in one eye); see also Fuentes v. March 26, 2003 ( see 3/26/03 R & R [# 148] at 5-7), Park, No. 03 Civ. 2660(RM B), 2005 W L Tucker contends that plaintiff lacks standing to assert the 911442, at *2-3 (S.D.N.Y. Apr.18, 2005) constitutional rights of others, including his children. See (dismissing pro se plaintiff's claim for lack of Tucker Mem. [# 215] at 11-12. subject matter jurisdiction where, due to his FN18. In his third amended complaint, plaintiff ignorance of exhaustion requirement, plaintiff references Davis as “Elma Davis.” 3d Am. Compl. at 7. In her affidavit, Davis identifies had failed to exhaust his administrative remedies under the FTCA). herself as “Ilma Davis.” See generally Affidavit

[of Ilma Davis] (Pl.Mem. (Tucker) [# 241] Ex.

FN17. In 1988, Congress enacted the Federal P). Employees Liability Reform and T ort

Compensation Act (“the W estfall Act”), Pub.L. FN19. For example, plaintiff states in his third 100-694, 102 Stat. 4563 (1988), which amended amended complaint: the FTCA to “expressly provide[ ] that while the It is not known to Mr. Dockery what was administrative-exhaustion requirement would apply to all actions, even those removed from missing from Ms. Davis['] apartment and the state court, plaintiffs would be given an matter is left open for the parties to [ ] argue

when Dockery provide[s] more evidence from Ms. Davis. Therefore any damage and loss of Plaintiff sues D.C. officials Dreher and Soulsby in property from Ms. Davis['] apartment is not their official capacities, as well as the District itself, for waive[d] by plaintiff, due [to] defendants['] violations of plaintiff's Fourth Amendment rights in conduct in leaving Ms. Davis['] front door connection with the 1995 search. 3d Am. Compl. at unfix[ed] and unsecured. 12-15. Dreher and Soulsby seek dismissal of the claims against them on the ground that “a suit against them in 3d Am. Compl. at 7. their official capacities is akin to a suit against the [District] itself.” D.C. Mem. [# 227] at 8.

*8 It is well established that “[t]he right of a third “Official-capacity suits ... ‘generally represent only party not named in [an] arrest warrant to the privacy of his another way of pleading an action against an entity of home may not be invaded without a search warrant[.]” which an officer is an agent.’ As long as the government United States v. Underwood, 717 F.2d 482, 484 (9th entity receives notice and an opportunity to respond, an Cir.1983) (en banc) (citation and emphasis omitted). official-capacity suit is, in all respects other than name, to Importantly, however, “this right is personal to the home be treated as a suit against the entity.” Kentucky v. owner and cannot be asserted vicariously by the person Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 named in the arrest warrant.” Id. at 484; accord Rakas v. L.Ed.2d 114 (1985) (quoting Monell, 436 U.S. 658, 690, Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Thus, where both 387 (1978) (“Fourth Amendment rights are personal rights a municipality and an official in his official capacity are which, like some other constitutional rights, may not be sued for the same acts under 42 U.S.C. § 1983, the claims vicariously asserted.”) (internal quotation marks and are redundant, and the municipality may be substituted for citations omitted); United States v. Haqq, 278 F.3d 44, 47 the officials. See Booker v. Bd. of Educ., 238 F.Supp.2d (2d Cir.2002). Accordingly, plaintiff cannot assert Fourth 469, 475 (N.D.N.Y.2002) (dismissing official capacity Amendment claims on behalf of his children or Davis claims against individual defendants as redundant of Monell claims against municipality); Snall v. City of New based on the entries into and searches of their apartments. See also 3/26/03 R & R [# 148] at 5-7 (non-attorney pro York, No. 97-CV-5201 (ILG), 1998 W L 960296, at *4 se party is not permitted to represent the interests of (E.D.N.Y. Dec.7, 1998) (same); Rini v. Zwirn, 886 others, including his children). FN20 F.Supp. 270, 281-82 (E.D.N.Y.1995) (same); Orange v. County of Suffolk, 830 F.Supp. 701, 706-07 FN20. Plaintiff claims that, after he purchased (E.D.N.Y.1993) (same). Here, plaintiff's official capacity the building with his own funds, title was claims against Soulsby and Dreher are coextensive with transferred to his two daughters, but that he his municipal liability claims against the District. It is therefore appropriate to grant Dreher and Soulsby's remained “the sole managerial agent of the aforesaid premises” and, as such, has standing to request that the official capacity claims against them be challenge all “unauthorized general searches and dismissed.

seizure[s] of the apartments ....” 3d Am. Compl.

at 7. The Court need not resolve the separate II. Defendants' Motions For Sum m ary Judgm ent question of whether plaintiff had a reasonable

expectation of privacy in portions of the All of the defense motions for summary judgment Premises other than his own apartment-for concern the claims arising out of the October 1995 search. example, his children's apartment, Davis's Each defendant moves for summary judgment on apartment, the basement, and the newly plaintiff's Fourth Amendment claim, as well as on renovated third-floor apartments-as the parties plaintiff's demand for damages; Reed and Young and the have not raised or briefed this issue. District also move for summary judgment on plaintiff's common law tort claims. Further, as each defendant also challenges plaintiff's due process claims, and C. Official Capacity Claims Against Dreher and Soulsby consideration of evidence beyond the complaint is necessary to resolve this matter, defendants' motions on omitted). In ruling on a motion for summary judgment, the these claims will be reviewed under the summary Court must resolve all ambiguities and draw all factual judgment standard. FN22 inferences in favor of the party against whom summary FN21. Defendants Soulsby and Dreher are not judgment is sought. See id. at 255. Summary judgment “is named in the common law tort claims. properly granted only when no rational finder of fact could find in favor of the non-moving party.” Carlton v. Mystic

FN22. Although the D.C. defendants move to Transp., Inc., 202 F.3d 129, 134 (2d Cir.2000). dismiss plaintiff's due process claims and, in the B. Due Process Claims alternative, seek summary judgment on them ( see

D.C. M em. [# 227] at 14-18), Tucker inartfully Plaintiff's latest pleading alleges that, “[i]n breaking into Mr. Dockery's premises, apartments, grocery store, articulates his challenge to these claims as a motion to dismiss, albeit citing extra-pleading and basement[;] ... conduct[ing] an unauthorized search[ materials. Tucker M em. [# 215] at 8-11; but ] and seizure of private property[;] destr[oying] ... [his] see id. at 25. As plaintiff likewise relies upon private premises[;] and [causing a] loss of [his] business ... [Tucker] violated the Fifth Amendment to the United evidence outside the pleadings, this Court will, for the purposes of the present inquiry, convert States Constitution. As a result of such violation, M r. Tucker's motion into one for summary judgment, Dockery was denied his protected property interest an[d] as permitted by Fed.R.Civ.P. 12(b). [ ]appropriate level of process ....” 3d Am. Compl. at 9-10. The pleading similarly alleges that defendants Reed and

A. Summary Judgment Standard Young violated plaintiff's right to due process under the Fifth Amendment by breaking into and searching Summary judgment may be granted only where the plaintiff's property, and by leaving it “unsecured, without pleadings and evidence in the record “demonstrate the door and locks,” thereby depriving him of a “protected absence of a genuine issue of material fact.” Celotex property interest.” Id. at 11-12. Plaintiff further claims that Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 Dreher and Soulsby are responsible for these due process L.Ed.2d 265 (1986); see Fed.R.Civ.P. 56(c). W here, as violations, based on their having established a policy or here, a defendant seeks “summary judgment against [the] practice of such misconduct and having failed to properly party who will bear the ultimate burden of proof at trial, train and supervise their homicide officers. Id. at 13-16. the movant's burden will be satisfied if he can point to an W hile it is not clear whether these allegations are intended absence of evidence to support an essential element of the to support procedural or substantive due process claims, nonmoving party's claim.” Goenaga v. March of Dimes under either theory plaintiff's claims fail as a matter of Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see law. Therefore, defendants' motions with respect to Celotex, 477 U.S. at 323 (“The moving party is ‘entitled plaintiff's due process claims should be granted. to a judgment as a matter of law’ because the nonmoving FN23. Plaintiff specifically alleges a denial of his party has failed to make a sufficient showing on an “right to due process of law as protected by the essential element of her case with respect to which she has Fourteenth Amendment ....” 3d Am. Compl. at the burden of proof.”); Nora Beverages, Inc. v. Perrier 14 (emphasis added); see also id. at 11, 16. Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998). However, it is the Fifth (not the Fourteenth) Once the moving party has made the requisite showing, Amendment that protects individuals from the non-moving party “may not rest upon the mere deprivations of property without due process by allegations or denials of the adverse party's pleading, but the District of Columbia and its employees. See the adverse party's response ... must set forth specific facts Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. showing that there is a genuine issue for trial.” 693, 98 L.Ed. 884 (1954) (“The Fifth Fed.R.Civ.P. 56(e). “If the evidence is merely colorable, Amendment ... is applicable in the District of or is not significantly probative, summary judgment may Columbia ....”). be granted.” Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations 1. Procedural Due Process (S.D.N.Y. Sept. 8, 1999) (noting the cognizability of a To state a procedural due process claim, a conversion cause of action under New York law)-plaintiff could have sought relief administratively and then under plaintiff must allege that he was deprived of a protected property or liberty interest by governmental action and the FTCA. Having failed to avail himself of these that such deprivation occurred without adequate process. procedures, plaintiff has not alleged and cannot establish See Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir.1989); a procedural due process violation. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002) (“[A] Parsons v. Pond, 126 F.Supp.2d 205, 214-15 (D.Conn.2000). “W hen reviewing alleged procedural due procedural due process violation cannot have occurred process violations, the Supreme Court has distinguished when the governmental actor provides apparently adequate between (a) claims based on established state procedures procedural remedies and the plaintiff has not availed and (b) claims based on random, unauthorized acts by himself of those remedies.”) (quoting New York State Nat'l state employees.” Hellenic Am. Neighborhood Action Org. For Women v. Pataki, 261 F.3d 156, 169 (2d Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.2001) (emphasis omitted)); Estes-El v. New York, 552 Cir.1996). F.Supp. 885, 889 (S.D.N.Y.1982) (holding that New York If a plaintiff can successfully prove that the procedures for remedies for governmental taking of deprivation of his property was the result of an property-including suits for common law torts such as “established state procedure,” liability for a procedural trespass to property, “appear adequate”; “[u]ntil plaintiff due process violation may attach, despite the existence of can demonstrate that he has availed himself of these post-deprivation remedies to address the harm alleged. procedures, and that they do not provide due process, he Butler v. Castro, 896 F.2d 698, 700 (2d Cir.1990) (“[T]he cannot prove his property was taken without due process.”). FN24 existence of independent state relief does not defeat a Section 1983 claim where the deprivation complained of FN24. Plaintiff acknowledges the existence of results from the operation of established state post-deprivation remedies for the injuries he alleges, but challenges the adequacy of such procedures.”). W here, however, the acts alleged are “random” and “unauthorized,” pre-deprivation procedures relief. Pl. Mem. (Tucker) [# 241] at 1-2. are not required, “since the [government] cannot know Specifically, plaintiff contends that the when such deprivations will occur.” Hudson v. Palmer, information provided to him for making a damage report to the FBI was insufficient, in that 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (internal quotation marks omitted). Accordingly, a the number provided by the agency went deprivation of property will “not constitute a violation of unanswered during several calls by plaintiff and the procedural requirements of the Due Process Clause ... Denise Sutton over a three-month period. See id. at 2. Plaintiff additionally denies that he or until and unless [the government] ... refuses to provide a suitable postdeprivation remedy.” Id. Sutton was provided with instructions about how

to make a claim to the FBI (Pl. 56.1 (Tucker) ¶ a. Tucker 24) and thus claims that he was unaware of the

requirements of the FTCA and his rights The FTCA, which permits an action against the thereunder. Pl. Mem. (Tucker) at 2. Plaintiff United States for torts cognizable under state law that are does not aver that he ever filed a formal, written committed by federal employees acting within the scope complaint with the FBI, the District of Columbia, of their employment, provides an adequate remedy for the the D.C. Police Department, or the individual property torts plaintiff alleges were committed by Tucker. defendants.

28 U.S.C. § 2679(b)(1). As plaintiff's property damage

and seizure claims sound in conversion and trespass to Neither plaintiff's professed ignorance of the chattels-causes of actions that are recognized under New law nor the FBI's allegedly ineffective York law, see Mosseri v. Fed. Deposit Ins. Corp., 95 Civ. telephone contact information is sufficient to 723(BSJ), 97 Civ. 969(BSJ), 1999 W L 694289, at *20 establish a procedural due process violation.

Plaintiff's unawareness of his post-deprivation 420 (1981) (“Although the [state's tort] remedies may not remedies under federal and state tort law does provide the respondent with all the relief which may have not render the remedies inadequate to address been available if he could have proceeded under § 1983, the harms alleged. See Fox v. Van Oosterum, that does not mean that the state remedies are not adequate 987 F.Supp. 597, 605-06 (W .D.Mich.1997) to satisfy the requirements of due process. The remedies (plaintiff failed to prove the inadequacy of provided could have fully compensated the respondent for post-deprivation rem edies despite his the property loss he suffered, and we hold that they are “insufficient education, lack of knowledge of sufficient to satisfy the requirements of due process.”), the law, indigency and incarceration”). In any overruled on other grounds by Daniels v. Williams, 474 event, because plaintiff failed to comply with U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ; Strong the procedural requirements of the FTCA, v. Torres, No. 03 C 292, 2004 W L 626144, at *5 (N.D.Ill. which requires that a plaintiff submit written Mar.26, 2004) (“[Plaintiff] has recourse within the Illinois notice of claim to the relevant federal agency State courts and, therefore, no federal claim.”). Plaintiff before commencing a civil action against the does not contest the availability or adequacy of the same, see 28 C.F.R. § 14.2 (“For purposes of post-deprivation remedies for the alleged misconduct of the ... [FTCA], a claim shall be deemed to the D.C. defendants. Indeed, by adding common law tort have been presented when a Federal agency claims against Reed, Young, and the District of Columbia receives from a claimant ... written notification to his third amended complaint, plaintiff acknowledges the of an incident, accompanied by a claim for existence of such remedies. See 3d Am. Compl. at 10-11. money damages in a sum certain ....”), it is of

no constitutional consequence that the FBI's Moreover, to the extent that plaintiff argues that a telephone procedure, whatever its purpose, procedural due process violation resulted from the D.C. was inoperable or ineffective. defendants' established “custom, policy, or practice” of permitting unauthorized and destructive searches by its b. D.C. defendants employees, this claim is unsupported by the record.

Despite his having requested and received discovery on Plaintiff similarly alleges that the D.C. defendants the policies and practices of the District of Columbia, deprived him of due process through the intentional and plaintiff points to no evidence that the injuries he alleges malicious acts of Reed and Young, and the deliberate were the product of an official policy or custom. See infra indifference of Soulsby and Dreher. 3d Am. Compl. at pp. 54-57. In the absence of such evidence, plaintiff 10-16. cannot prove a procedural due process violation.

As the State of New York, where the injury was allegedly inflicted, provides a remedy for such acts in the 2. Substantive Due Process form of a common law tort action, see Sch. of Visual Arts v. Kuprewicz, 3 Misc.3d 278, 771 N.Y.S.2d 804, 807 In the event that plaintiff is seeking to hold defendants liable under a substantive due process theory of liability, (Sup.Ct. N.Y. County 2003); Capital Distribs. Servs., Ltd. v. Ducor Express Airlines, Inc., No. 04 CV such a claim cannot survive, given the existence of an 5303(NG)(VVP), 2006 W L 2041574, at *10 (E.D.N.Y. explicit textual source of constitutional protection-the July 21, 2006), plaintiff must seek relief through those Fourth Amendment-for the injuries plaintiff alleges. “[W ]here another provision of the Constitution ‘provides state law remedies, not the federal due process clause. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 an explicit textual source of constitutional protection,’ a L.Ed.2d 100 (1990) (stating that in determining whether court must assess a plaintiff's claim under that explicit a violation of procedural due process has occurred, “it is provision and ‘not the more generalized notion of “substantive due process.” ’ ” Conn v. Gabbert, 526 U.S. necessary to ... examine ... any remedies for erroneous deprivations provided by statute or tort law.”); Parratt v. 286, 293, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 68 L.Ed.2d (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see Boroff v. Van West City Bd. of Educ., 220 F.3d 465, 471 (6th Cir.2000) seizure under the Fourth Amendment). (“[T]he Supreme Court has repeatedly emphasized that substantive due process is not to be used as a fallback Because plaintiff's destruction of property claims are constitutional provision when another provision or cognizable under the Fourth Amendment, they should be amendment ... directly addresses the subject.”). analyzed under that constitutional provision, and not as *12 Plaintiff's allegations that defendants destroyed substantive due process claims. See Heidorf, 985 F.Supp. at 257. Therefore, assuming that plaintiff seeks recovery and seized his property by unlawfully entering into and searching the Premises, and by “maliciously” and under a substantive due process theory of liability, these “intentionally” leaving the Premises unsecured, see 3d claims should be dismissed. See id. (holding that because Am. Compl. at 8, 10, assert the kinds of harms that are plaintiff's claim that the defendants unreasonably cognizable under the Fourth Amendment, which protects demolished his church “fits squarely within the contours against unreasonable searches and seizures by the of the Fourth Amendment[ ] ... his substantive due process government. U.S. Const. am. IV; see Fox v. Van claim must be dismissed.”). Oosterum, 987 F.Supp. 597, 607 (W .D.Mich.1997) (“[W ]here property damages are the result of a seizure by C. Personal Involvement Requirement Under Section state officials, plaintiff may state a Fourth Amendment 1983 and Bivens claim ....”) (citing Bonds v. Cox, 20 F.3d 697, 702 (6th Cir.1994)). Even where a search is conducted pursuant to Claiming constitutional deprivations, plaintiff seeks relief from the District and the individual D.C. defendants a valid warrant, “there exists a clearly established right not to incur unreasonable property damage during” the course under 42 U.S.C. § 1983, and from Tucker under Bivens v. of that search, Foreman v. Beckwith, 260 F.Supp.2d 500, Six Unknown Named Agents of the Federal Bureau of 505 (D.Conn.2003); see also Bonds, 20 F.3d at 702 Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see 3d Am. Compl. at 2, 11-16. In relevant part, (plaintiff could assert claim under Fourth Amendment for section 1983 provides: property damage that occurred during execution of search warrant), and all searches are therefore “subject to judicial Every person who, under color of any statute, review as to [their] reasonableness.” Tarpley v. Greene, ordinance, regulation, custom, or usage, of any State or 684 F.2d 1, 8 (D.C.Cir.1982) (citing Dalia v. United Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other States, 441 U.S. 238, 258, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979)). Furthermore, since “[a] ‘seizure’ of property person within the jurisdiction thereof to the deprivation occurs when ‘there is some meaningful interference with of any rights, privileges, or immunities secured by the an individual's possessory interests in that property,’ ” Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. proceeding for redress .... Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)), damage to or destruction of property may 42 U.S.C. § 1983. “By its terms ... the statute creates no substantive rights; it merely provides remedies for constitute a seizure under the Fourth Amendment. See Heidorf v. Town of Northumberland, 985 F.Supp. 250, deprivations of rights established elsewhere.” City of 257 (N.D.N.Y.1997) (“[T]here can be no question that the Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. demolition of plaintiff's Church amounted to a seizure 2427, 85 L.Ed.2d 791 (1985) (plurality opinion); accord Bartlett v. City of New York, No. CV0319161CPS, 2005 within the meaning of the Fourth Amendment.”); see also Fuller v. Vines, 36 F.3d 65, 67 (9th Cir.1994) (“The W L 887112, at *5 (E.D.N.Y. Feb.11, 2005). Further, destruction of property is meaningful interference although the statute explicitly provides for relief against constituting a seizure under the Fourth Amendment ....”) state or D.C. employees, it does not authorize suit against their federal counterparts. In recognition of this limitation, (internal quotation marks and citations omitted); Newsome v. Erwin, 137 F.Supp.2d 934, 943 (S.D.Ohio 2000) the Supreme Court held in Bivens that “victims of a (shooting of pet lioness could amount to unreasonable constitutional violation by a federal agent have a right to

recover damages against the official in federal court despite the absence of any statute conferring such a right.” On review of a motion for summary judgment or judgment as a matter of law, “the issue is whether, viewing the Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). “Though more limited in some evidence in the light most favorable to [plaintiff], a respects ..., a Bivens action is the federal analog to suits reasonable juror could have concluded that [defendant's] brought against state officials under ... 42 U.S.C. § 1983.” conduct satisfied any one of [the enumerated] criteria.” Id. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 1700 n. at 154. 2, 164 L.Ed.2d 441 (Apr. 26, 2006). FN25. See Reeves v. Sanderson Plumbing In order to maintain an action against a federal or Prods., Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, state officer or official under Bivens or section 1983, a 147 L.Ed.2d 105 (2000) (“The standard for plaintiff must establish specific facts demonstrating that judgment as a matter of law under Rule 50 defendant's personal involvement in the constitutional mirrors the standard for summary judgment violations alleged. See McKinnon v. Patterson, 568 F.2d under Rule 56.”). 930, 934 (2d Cir.1977) (“[P]ersonal involvement of defendants in alleged constitutional deprivations is a 1. Personal Involvement of Tucker prerequisite to an award of damages under § 1983.”); Lonegan v. Hasty, No. 04 CV 2743(NG)(VVP), 2006 W L Tucker contends that he was not personally 1707258, at *18 (E.D.N.Y. June 22, 2006) (“In an action involved in the acts of which plaintiff complains. See seeking damages for a constitutional deprivation pursuant Tucker Mem. [# 215] at 19. Specifically, Tucker avers to Bivens, as in an action pursuant to Section 1983 of the that, during the October 23, 1995 search, “FBI Special Civil Rights Act, 42 U.S.C. § 1983, ... personal Agent Sam Alston was the case agent for involvement is a prerequisite to liability.”); Grullon v. surveillance”-that is, Alston, not Tucker, was in charge of Reid, No. 97 CIV. 7616(RW S), 1999 W L 436457, at *7 the October 1995 operation at the Premises. Tucker Decl. (S.D.N.Y. June 24, 1999). [# 217] ¶ 7. Tucker does, however, attest to his membership in the seven-agent FBI Task Force operating

A plaintiff may demonstrate the requisite personal at the scene. Id. W ithout detailing his precise role in the involvement either by proof of the defendant's direct surveillance, Tucker maintains that “Task Force agents participation in the alleged violation, or by that defendant's observed Dockery and Denise Sutton through the second having acted as a supervisory official who either: (a) failed floor apartment window of the building[ ]” and that “[t]he to remedy the violation once it was reported to him; (b) agents announced their purpose and authority.” Id. ¶ 8. He created a policy or custom that gave rise to the further attests that after waiting approximately twenty constitutional violation or permitted it to endure; or (c) minutes for Sutton to open the door, “FBI agents forced demonstrated gross negligence in managing the the building door open with a battering ram [,]” id. ¶ 9, at subordinates at whose hands the violation occurred. See which time NYPD Emergency Services Unit officers Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) proceeded to search the Premises. Id. ¶¶ 9-10. After the (citations omitted); Moffitt v. Town of Brookfield, 950 NYPD's search, Tucker and Alston entered the building F.2d 880, 886 (2d Cir.1991) (quoting Williams v. Smith, for the first time to verify that plaintiff was not inside. Id. 781 F.2d 319, 323-24 (2d Cir.1986)). The Second Circuit ¶ 12. has construed the phrase “direct participation” to include W hile plaintiff concedes that Tucker may not have “personal participation by one who has knowledge of the been the agent in charge of the October 1995 search, he facts that rendered the conduct illegal.” Provost v. City of argues that Tucker, acting with “numerous Federal Newburgh, 262 F.3d 146, 155 (2d Cir.2001) (citations Agent[s] conduct[ed] a General warrantless, nonexigent omitted). In this regard, liability may be found against “a and nonconsensual entry” into the building. Pl. 56.1 person who, with knowledge of the illegality, participates (Tucker) [# 264] ¶ 18. Citing Tucker's testimony at in bringing about a violation of the victim's rights but does Dockery's criminal trial, plaintiff argues that Tucker was in fact involved in the search. FN26 so in a manner that might be said to be ‘indirect’....” Id.

search team, she was not involved to any substantial FN26. Tucker testified at trial: “W e searched ... degree with either Plaintiffs' arrests or the apartment the location from room to room and we looked at search.”). Therefore, Tucker is not entitled to summary all the obvious hiding places, and we didn't have judgment for lack of personal involvement in the search any luck in discovering him.” Pl. 56.1 (Tucker) complained of.

[# 264] ¶ 21 (citing [7/30/98 Testimony of

Special Agent Nathan Tucker, D.C. Superior FN27. Indeed, Tucker's testimony at Dockery's Court] at 711 (attached as Ex. 5 to Plaintiff criminal trial could be construed to indicate his D ockery's M emorandum of Points and direct involvement in the search.

Authorities in Opposition to Defendant Tucker's

M emorandum Opposing Plaintiff's Third 2. Personal Involvement of Reed and Young Amended Complaint to Conform with His

Evidence, dated 9/9/03 [# 172] )); see also Plaintiff also seeks to hold Reed and Young [Undated Excerpt of Testimony of Special Agent liable for their alleged violation of plaintiff's Fourth Nathan Tucker, D.C. Superior Court] (attached Amendment rights through their participation in the search to Mot. Opposing Legal Aid [# 32] ) at 223 of the Premises on October 23, 1995. Reed and Young (conceding that he entered the building and deny that they were present in New York during the 1995 “found a pit bull when we got inside the main search and thus deny responsibility for any violations entrance ....”); [Undated Excerpt of Testimony of related to the events in question. Reed Aff. [# 226] ¶ Special Agent Nathan Tucker, D.C. Superior 4; Young Aff. [# 225] ¶ 4.

Court] (attached to Pl. Mem. (Tucker) [# 241] as In support of his claim, plaintiff provides an affidavit Ex. 221) at 224 (“W ell, after speaking with summarizing a conversation he claims to have had with [Denise Sutton] repeatedly and trying to get her Reed and Young in which they allegedly admitted their participation in the 1995 search. FN28 W hatever the to open the door, we had no choice but to knock it down.”). implausibility of Dockery's assertion, the Court is

constrained, on this motion for summary judgment, to Even accepting Tucker's contention that his role in the construe the facts in the light most favorable to the search was secondary to that of the NYPD and Agent non-moving party. Viewed through this lens, the alleged Alston, his admitted participation in the FBI Task Force admissions by defendants Reed and Young create a and his descriptions at trial of the acts at the scene are material issue of fact with respect to their personal sufficient evidence upon which a reasonable juror could involvement in the events of October 1995. See Ricciuti, conclude that Tucker was personally involved, even if 124 F.3d at 129-30. Accordingly, they are not entitled to summary judgment on this ground. FN29 indirectly, in the search that is the subject of plaintiff's claims. See Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129-30 (2d Cir.1997) (reversing an award FN28. Plaintiff states, in pertinent part, that, of summary judgment where material issue of fact during his interrogation by Reed and Young remained as to defendant's personal involvement in following his arrest on February 6, 1996, “Reed fabrication of confession); but cf. Djonbalic v. City of New and Young expressed their knowledge, and York, No. 99 CIV. 11398 SHSAJP, 2000 W L 1146631, at concern that, they too were inside the Three Star[ *11 (S.D.N.Y. Aug.14, 2000) (granting summary ] Grocery Store and the apartments helping the judgment based on lack of personal involvement where FBI and New York City police officers looking defendant agent “was not inside the building and therefore for Dockery.” 8/18/05 Pl. Aff. (attached to Pl. was not in a position to ‘remedy the wrong’ alleged ....”) Mem. (D.C.) [# 246] ) ¶ 5. In another affidavit, (citation omitted); Howard v. Schoberle, 907 F.Supp. 671, plaintiff elaborates: “Reed expressed her 681 (S.D.N.Y.1995) (granting summary judgment to an knowledge of being inside the Three Star [ ] FBI officer; “[a]lthough [defendant] accompanied the Grocery Store and the apartments looking for

Mr. Dockery, because agents who she was with have not waived their challenge to personal said they thought they saw Dockery inside the jurisdiction.

second floor window, so ... Reed and the FBI

searched the entire premises, but Dockery was Nevertheless, Reed and Young are not entitled lucky he escaped that time.” 7/5/01 Pl. Aff. to summary judgment on this ground, as the (attached to Pl. Mem. (Tucker) [# 241] ) at 2. very basis of their defense-that they were not

present in New York during the 1995 entry Plaintiff has also submitted excerpts from and search-is disputed by the parties. See D.C. Reed's testimony at plaintiff's criminal trial. In 56.1 [# 224] ¶ 11; Pl. 56.1 (D.C.) [# 265] ¶ 11; particular, plaintiff cites Reed's statement that Pl. Aff. (attached to Pl. Mem. (Tucker) [# 241] prior to Dockery's arrest in February 1996, she ) at 2-3. Accordingly, as with Reed and had, on an earlier occasion, requested “a Young's claim that they were not personally turn-up to locate Mr. Dockery at an address in involved in the acts at the Premises for Brooklyn.” [Trial Testimony of Pamela Reed] purposes of section 1983, the Court cannot (Ex. J. to Pl. Mem. (Tucker) [# 241] ) at 78. determine whether Reed and Young had Contrary to plaintiff's assumption, a request by sufficient contacts with New York to establish a police officer for law enforcement assistance personal jurisdiction over them. outside his or her geographic jurisdiction does

not, without more, establish the requesting As will be established, however, Dreher and officer's personal involvement in alleged Soulsby are entitled to dismissal of the claims misconduct occurring in the other jurisdiction. against them, in light of plaintiff's failure to prove that they created or enforced a FN29. The D.C. defendants alternatively assert municipal policy or custom with respect to the that this Court lacks personal jurisdiction over 1995 acts. See infra pp. 37-39, 54-57. Because them with respect to the 1995 search of the plaintiff fails to adduce any other facts to Premises because they “did not have any contact establish that Dreher and Soulsby had with the State of New York on the subject date.” sufficient contacts with New York to justify D.C. Mem. at 5. Plaintiff argues that the D.C. personal jurisdiction over them, see, e.g., Ashi defendants have waived their challenge to the Metal Indus. Co. v. Superior Ct. of Cal., 480 Court's jurisdiction by failing to interpose this U.S. 102, 108-09, 107 S.Ct. 1026, 94 L.Ed.2d defense in their earlier answers and moving 92 (1987) (O'Connor, J., plurality); Burger papers. See Pl. Mem. (D.C.) at 3-4 (citing King Corp. v. Rudzewicz, 471 U.S. 462, Fed.R.Civ.P. 12(g)). 471-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), plaintiff's claims against these Although the D.C. defendants previously defendants should also be dismissed for lack of

moved against the third amended complaint, personal jurisdiction.

the defendants' earlier motion was not

accepted, as it was procedurally defective. See 3. Personal Involvement of Dreher and Soulsby 4/28/05 M & O [# 207] at 16-19. Thus, the Plaintiff's Fourth Amendment claims against

instant motion, which (like their answer to the first amended complaint) includes an objection defendants Dreher and Soulsby, in their individual capacities, stand on a different footing. Dreher and to personal jurisdiction as to each of the D.C. defendants, is the D.C. defendants' first Soulsby challenge these claims on the ground that a suit against them in their individual capacities must be responsive motion or pleading to the operative complaint. D.C. Mem. at 5-6; D.C. Reply interpreted in this case as a claim against them in their Mem. at 4-7. Accordingly, the D.C. defendants official capacities, and thus, as against the District. D.C. Mem. [# 227] at 7; D.C. Reply [# 257] at 8-9. Citing Monell as authority, Dreher and Soulsby thus maintain that directly involved in the acts alleged; (2) “failed to remedy plaintiff's individual capacity claims should be dismissed. the wrong[s]” after being informed of them; (3) “created

FN30. As mentioned in this Court's Report and a policy or custom under which constitutional practices Recommendation of March 26, 2003, “[s]ince occurred, or allowed the continuance of such a policy or neither the original complaint nor the first custom”; (4) were “grossly negligent in supervising amended complaint named Soulsby or Dreher, a subordinates”; or (5) demonstrated “deliberate suit against them in their individual capacities indifference ... by failing to act on information indicating under 42 U.S.C. § 1983, would be time-barred that unconstitutional acts were occurring.” Colon, 58 F.3d by the ... three-year statute of limitations ....” at 873 (internal quotation marks and citations omitted). 3/26/03 R & R at 16 n. 17. However, as Dreher and Soulsby failed to interpose a statute of Plaintiff does not and cannot claim that Dreher limitations defense in either their opposition to and Soulsby were directly involved in the 1995 search or plaintiff's motion to amend his complaint for the that they even had knowledge of the events at issue, either third time or in their pending motions, see, e.g., before or after they occurred. Instead, plaintiff alleges that 4/28/05 M & O [# 207] at 8-9, the Court will not Dreher and Soulsby “established a Municipal policy, raise that defense sua sponte. practice, or custom that violate[d] the Fourth Amendment

....” 3d Am. Compl. at 12, 14-15. However, as detailed in In Kentucky v. Graham, the Supreme Court clarified the section of this opinion addressing his Monell claims, FN31 plaintiff produces no admissible proof of the that while claims against a government officer in his existence or creation of such a policy. Because plaintiff official capacity “generally represent only another way of pleading an action against an entity of which the agent is thus presents no material issue of fact with respect to the an officer,” 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 individual liability of Dreher and Soulsby, their motion for L.Ed.2d 114 (1985) (quoting Monell, 436 U.S. 658, 690, summary judgment on plaintiff's constitutional claims 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)), a suit against an should be granted. See, e.g., Tricoles v. Bumpus, No. officer in his personal or individual capacity is distinct in 05CV3728(JFB)(JO), 2006 W L 767897, at *4 (E.D.N.Y. that relief comes not from governmental assets but instead Mar. 23, 2006) (dismissing as “too vague and conclusory from the officer's own personal assets. Kentucky v. to state a claim” plaintiff's allegations that the Graham, 473 U.S. at 166. Because plaintiff seeks through Commissioner of the N.Y.S. Office of Children and his individual capacity claims against Dreher and Soulsby Family Services had failed to train/supervise subordinates to hold these officials personally liable for actions they and/or established a custom/policy that caused plaintiff's allegedly took under the color of D.C. law, plaintiff's injury, where plaintiff offered “no specific allegations of claims are not, in a legal sense, duplicative of his official personal involvement by the Commissioner”); Lewis v. capacity claims against the officers or of his claims against Meloni, 949 F.Supp. 158, 163-65 (W .D.N.Y.1996) the District of Columbia. (granting summary judgment in favor of Sheriff where

plaintiff had failed to demonstrate the existence of Defendants' argument is, however, not without force. material issues of fact with respect to the defendant's Under section 1983, a plaintiff may establish individual failure to supervise or train his subordinates, or liability against an official by showing that “the official, defendant's deliberate indifference to the false arrests acting under the color of state law, caused the deprivation alleged); Washington Square Post No. 1212 v. City of New of a federal right.” Kentucky v. Graham, 473 U.S. at 166 York, 720 F.Supp. 337, 345-47 (S.D.N.Y.1989) (granting (citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 summary judgment in favor of Police Commissioner in the L.Ed.2d 492 (1961)). In the instant case, plaintiff fails to absence of proof of personal involvement in warrantless establish that Dreher and Soulsby “caused the deprivation” and allegedly illegal search), rev'd on other grounds, 907 of his Fourth Amendment rights: plaintiff provides no F.2d 1288 (2d Cir.1990). admissible evidence that creates a material issue of fact with respect to whether Dreher and Soulsby (1) were FN31. See infra pp. 54-57. 135 (2d Cir.2003)). W hen an officer has reason to believe that a suspect is at the suspect's residence, FN34 an arrest

FN32. Indeed, plaintiff does not purport to have specific facts linking Dreher and Soulsby to the warrant, like a search warrant, is sufficient to authorize the acts in question and asserts only that “[t]he officer's entry into the suspect's home to effect his arrest. identification of [a] municipal policymaker is See United States v. Lauter, 57 F.3d 212, 214 (2d solely a question of law for the Court.” Pl. Mem. Cir.1995) (citing, inter alia, Payton, 445 U.S. at 603); see (D.C.) [# 246] at 12. also Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (“Because an arrest

D. Unlawful Entry and Destruction of Property in warrant authorizes the police to deprive a person of his 1995 FN33 liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest

FN33. Claims against Tucker arising out of the him in his home.”). February 1996 incident were previously FN34. See cases cited infra pp. 45-46. dismissed, and Reed and Young have not moved against the original complaint, which contains In the instant case, plaintiff contends that the August the claims relating to 1996. See supra note 3. 1995 arrest warrant on which defendants rely in support of

their motion is a forgery, and that the other defense Plaintiff alleges that in entering the Premises on evidence concerning the warrant is either unverified or October 23, 1995, defendants lacked the authority of an falsely manufactured. See Plaintiff['s] Affidavit in Support active warrant and, thus, violated plaintiff's Fourth of Cross-Motion for Summary Judgment (“Pl. Aff.” [# Amendment rights by unlawfully entering (1) the 242] ) ¶ 4; Pl. Mem. [# 241] at 10-11.

apartment building, (2) the basement, (3) plaintiff's

grocery store, (4) plaintiff's second-floor apartment The validity and active nature of the warrant in (Apartment # 2F), (5) the Davis apartment (Apartment # question have already been judicially determined, albeit in a different action. FN35 As the D.C. Superior Court upheld 2R), (6) the apartment of plaintiff's daughters (Apartment # 1RR), and (7) two newly renovated apartments the 1995 arrest warrant in connection with plaintiff's underlying criminal case, plaintiff is collaterally (Apartments # 3F and 3R). 3d Am. Compl. at 5-7, 9, 11. Plaintiff additionally claims that defendants estopped from relitigating this issue. See Doe v. unreasonably destroyed entryways and fixtures in the Pfrommer, 148 F.3d 73, 80-81 (2d Cir.1998) (upholding building, and caused the loss of personal and business a court's right to invoke collateral estoppel sua sponte in property by intentionally leaving the Premises unsecured, the interest of the “strong public policy in economizing the all in violation of the Fourth Amendment. See id. at 5-9, use of judicial resources by avoiding relitigation ....”). 11. The Court will first consider whether the entry was

authorized by a valid warrant and will then examine the FN35. Tucker argues that this issue was reasonableness of the 1995 search under the Fourth determined by Judge Ross in a prior opinion in Amendment. this case. However, in the decision in question,

dated September 24, 1998, Judge Ross reviewed 1. Validity of the August 1995 Arrest W arrant the four warrants outstanding at the time of the

1996 search of the Premises, noting that “there is Consistent with the Fourth Amendment, the arrest no question as to [the warrants'] validity,” of an individual in his home must be supported by “either: 9/24/98 Op. [# 44] at 23, but cautioning that “the 1) a warrant; or 2) the existence of both probable cause active nature of one of the warrants is open to and an exception to the warrant requirement.” Hogan v. debate ....” Id. at 22. The referenced arrest Caputo, No. 02-CV-1040(LEK/RFT), 2004 W L 1376395, warrant, dated August 12, 1995 and reapproved at *6 (N.D.N.Y. June 21, 2004) (citing Payton v. New on August 14, 1995, “bears a large ‘X’ on its York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 face, accompanied by the word ‘VACATE’ (1980), and Anthony v. City of New York, 339 F.3d 129,

without any indication of when it was vacated.” (D.C.Cir.1987); Washington Gas Light Co. v. Id. at 22 n. 11. Thus, while concluding that the Hsu, 478 F.Supp. 1262, 1263-64 (D.Md.1979). 1996 entry was authorized, Judge Ross did not rule that the August 1995 warrant was active at Plaintiff's challenge to the 1995 warrant, which the time of the 1995 search. See id. at 22, 23 & n. he presented to the D.C. Superior Court through a 11. collateral attack on his criminal conviction, has already

been litigated and decided. Specifically, plaintiff asserted FN36. See 1/14/02 Memorandum Opinion and that his trial counsel was ineffective in having failed to Order Denying § 23-110 Motion (“1/14/02 move to suppress testimony concerning the 1995 search of the Premises. FN38 D.C. Superior Court Judge Mary Ellen Mem.” [# 270] ), United States v. Jasper Dockery, Docket No. F-536-96. Abrecht rejected Dockery's ineffectiveness claim. See

1/14/02 Mem. [# 270] at 5-6. The court held that Dockery Under the Full Faith and Credit Act, 28 U.S.C. § had “proffer[ed] no reason for the Court to have found the 1738, the decisions of any state court “shall have the same October search unlawful, given the existence at the time of full faith and credit in every court within the United States a valid felony arrest warrant for obstruction of justice ....” ... as they have by law or usage in the courts of such State Id. (emphasis added). The D.C. court also rejected ... from which they are taken.” 28 U.S.C. § 1738. FN37 Dockery's claim that Tucker and the D.C. officers had lied Accordingly, pursuant to D.C. law, the Court in this action at plaintiff's criminal trial about the existence of the may not consider an issue previously presented to the D.C. warrant and of National Crime Information Center court where that issue is “one that was actually litigated (“NCIC”) records documenting its issuance. Id. at 17-19. and decided in the prior case, by a final and valid Specifically, Judge Abrecht explained, “Superior Court disposition on the merits, after a full and fair opportunity records corroborate [Reed and Tucker's] testimony about for litigation by the same parties or their privies, [and] the existence of an obstruction of justice warrant before where the issue was necessarily decided in disposing of the October 1995 search .... No confusion or absence of the first action, and not mere dictum.” Smith v. Jenkins, record keeping over faxes or NCIC printouts ... erases the 562 A.2d 610, 617 (D.C. Ct. of App.1989) (citing fact that law enforcement officials had been commanded W RIGHT, MILLER & COOPER, FEDERAL PRACTICE by the Superior Court to arrest Dockery.” Id. at 20. & PROCEDURE: JURISDICTION, § 4416 (1981)); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 FN38. Plaintiff's motion before the D.C. Superior U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (“It is Court is referenced in that court's opinion but is now settled that a federal court must give to a state-court not part of the record in the instant action. judgment the same preclusive effect as would be given

that judgment under the law of the State in which the Thus, the validity and active nature of the August judgment was rendered.”). “Principles of collateral 1995 warrant were actually litigated and decided in the estoppel may bar relitigation in a subsequent civil rights post-conviction proceeding, at which plaintiff had a full and fair opportunity to press the argument. In these action in federal court of an issue that was determined in a state court criminal proceeding.” Owens v. Trader, 873 circumstances, the ruling is entitled to preclusive effect F.2d 604, 606 (2d Cir.1989). under D.C. law. See District of Columbia v. Gould, 852 A.2d 50, 55 (D.C. Ct. of App.2004) ( “Under the doctrine FN37. The District of Columbia is considered a of collateral estoppel ... once an issue of fact or law has state for purposes of section 1738. 28 U.S.C. been actually and necessarily determined against a party § 1738 (referencing the judicial proceedings and by a court of competent jurisdiction, that determination is legislative acts of “any State, Territory, or conclusive on that party in any subsequent proceeding

Possession of the United States”); Synanon against that party based on a different cause of action.”). Church v. United States, 579 F.Supp. 967, 974 A fortiori, plaintiff is collaterally estopped from ( D . D . C . 1 9 8 4 ) , a f f ' d , 8 2 0 F . 2 d 4 2 1 relitigating in federal court his challenge to the 1995 warrant, notwithstanding his pro se status. See Conte v. face of the warrant. Id. ¶ 14. Additionally, Tucker Justice, 996 F.2d 1398, 1400 (2d Cir.1993); Bonilla v. produces an FBI lead, dated October 18, 1995-five days Brancato, No. 99 Civ. 10657 LTSJCF, 2002 W L before the challenged 1995 search-that bears the words 31093614, at *5 (S.D.N.Y. Sept.18, 2002) (“A plaintiff's “ARMED AND DANGEROUS” and states, in pertinent status as a pro se litigant does not, by itself, preclude part, that “[a]n arrest warrant was issued for captioned barring a claim under the doctrine of collateral estoppel, subject [Dockery] by the District of Columbia Superior but it is relevant to a determination of the fairness of his Court on 8/14/05, for Obstruction of Justice.” Tucker prior opportunity to be heard.”). FN40 Decl. Ex. A [# 217] at 1. The lead lists as enclosures a copy of the August 1995 arrest warrant and a photograph

FN39. Judge Abrecht's decision is a final one, as of Dockery. Id. This evidence supports Tucker's Dockery filed a notice of appeal to the D.C. contention that the warrant was active at the time of the Court of Appeals but then failed to perfect it. See October 1995 search.

Dockery v. United States, 853 A.2d 687, 691 n. 5 (D.C. Ct. of App.2004) (reviewing plaintiff's FN41. It is undisputed that plaintiff was arrested three consolidated appeals). by an FBI Fugitive Task Force at the Premises

on February 6, 1996. FN40. Judge Ross previously declined to give preclusive effect to a different ruling by the D.C. Plaintiff's challenge to this evidence is Superior Court, concerning the validity of a 1996 unavailing. As support for his suggestion that the 1995 bench warrant. However, there the status of the warrant was fraudulently manufactured after the October 1996 warrant was not central to the D.C. court's 1995 search, plaintiff offers a printout from the NCIC, resolution of the matter at hand-to wit, a motion dated March 15, 2000, that lists no warrant dated August to dismiss the indictment for lack of jurisdiction. 12, 1995, and, for the years 1995 and 1996, includes only See 9/24/98 Op. [# 44] at 18-19. Here, by a bench warrant dated February 2, 1996. See [NCIC contrast, the determination of the validity of the Report] (attached to Pl. Mem. (Tucker) [# 241] as Ex. 29). 1995 warrant was necessary to the resolution of Plaintiff erroneously assumes that the NCIC database is a Dockery's ineffective assistance of counsel claim cumulative record of every warrant ever in existence for a predicated on his attorney's failure to challenge particular individual. Pl. Mem. (Tucker) [# 241] at the October 1995 search. See Bigelow v. Knight, 13-14. In fact, warrants are regularly removed from the 737 F.Supp. 669, 671 (D.D.C.1990) (plaintiff's database once they have been satisfied or when other motion alleging ineffective assistance of trial official law enforcement action has been taken in a case. counsel was entitled to preclusive effect in See Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 subsequent federal action). L.Ed.2d 34 (1995) (reviewing a defense motion to suppress evidence on the ground that the evidence was Even assuming it did not merit preclusive effect, seized through an unlawful arrest based on a quashed Judge Abrecht's decision, together with other evidence in warrant that had erroneously remained in the computerized the record, establishes that the August 1995 warrant was database of the Sheriff's Office); id. at 26 (Ginsburg, J., both valid and active at the time of the October 1995 dissenting) (discussing NCIC database). Consequently, a search. Specifically, Tucker proffers the declaration of warrant that was satisfied and vacated in February 1996 Assistant United States Attorney Kenneth Kohl, who would ordinarily not appear on an NCIC printout from participated in the preparation of the August 1995 warrant. March 2000.

See generally Kohl Decl. [# 218]. Kohl attests that the

warrant was not vacated until after Dockery's arrest in W ith the exception of the NCIC printout, plaintiff February 1996, at which time the clerk of the D.C. provides only conclusory allegations of the arrest warrant's Superior Court was notified that it could be withdrawn and invalidity. In light of the defense's factual showing, these thereafter marked an “X” and the word “VACATE” on the allegations do not present a material issue of fact as to the existence of a valid active warrant for plaintiff's arrest at defense of qualified immunity from liability for the time of the October 1995 search. See Kia P. v. any violations of the Fourth Amendment. Tucker McIntyre, 235 F.3d 749, 763 (2d Cir.2000) (“A plaintiff Mem. [# 245] at 21-24; D.C. M em. [# 227] at may not survive a properly asserted motion for summary 17-18. The qualified immunity defense is judgment on the basis of conclusory allegations alone.”). discussed infra pp. 51-54. Tucker attests that he was aware of an August 1995

2. Reasonableness of the 1995 Entries FBI lead that advised that plaintiff “may be located in the The inquiry does not end here. It is well settled that a vicinity of ‘3 Star Grocery,’ 2127 Pitkin Avenue, law enforcement officer seeking to enter a suspect's home Brooklyn, New York,” and that provided two telephone numbers for him. Tucker Mem. [# 215] Ex. A at 1. FN43 pursuant to an arrest warrant must have “reason to believe that the suspect is present.” Lauter, 57 F.3d at 215; accord Tucker further attests that surveillance was commenced at United States v. Lovelock, 170 F.3d 339, 344 (2d the Premises, “where Dockery was suspected of dwelling.” Cir.1999); United States v. Big Apple Bag Co., 317 Tucker Decl. [# 217] ¶ 7. Additionally, in connection with F.Supp.2d 181, 186 (E.D.N.Y.2004) (stating that the plaintiff's criminal prosecution in the D.C. Superior Court, reasonable belief standard “has been interpreted to Tucker testified that, prior to the search, he had learned ‘require[ ] a two-part inquiry: first, there must be a that plaintiff owned the building at 2127 Pitkin Avenue reasonable belief that the location to be searched is the and, moreover, believed that plaintiff's apartment was suspect's dwelling, and second, the police must have located on the second floor, “but it could have been ‘reason to believe’ that the suspect is within the dwelling.' anywhere in the building since he was the owner.” ”) (quoting United States v. Magluta, 44 F.3d 1530, 1533 [Testimony of Special Agent Nathan Tucker, D.C. Superior Court] FN44 (Ex. 6 to Plaintiff's Motion with New (11th Cir.1995)). This standard has been interpreted in this Circuit as “less stringent than a probable cause standard.” Facts for Appointment of Counsel (“Mot. to Appoint Bartlett, 2005 W L 887112, at *5 (citing, inter alia, Counsel”) [# 141] ) at 732; see attachment to Mot. Lauter, 57 F.3d at 215). Importantly, an officer's belief, Opposing Legal Aid [# 32] at 220) (testifying that although reasonable, need not be correct; thus, reasonable plaintiff's residence was “the entire building”). According mistakes as to a suspect's presence or address will not give to Tucker, before entering the building to serve the arrest rise to a Fourth Amendment violation. See Anderson v. warrant, he determined which apartment was plaintiff's United States, 107 F.Supp.2d 191, 196 (E.D.N.Y.2000) residence “by seeing him in the window on the second (citing Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. floor.” Mot. to Appoint Counsel, Ex. 6 [# 141] at 732. 1013, 94 L.Ed.2d 72 (1987), and Lovelock, 170 F.3d at 342). FN43. Multiple portions of the FBI lead Tucker contends that, at the time of the October submitted by Tucker have been redacted. 1995 search, he had a reasonable belief both that plaintiff

resided in the Premises and that plaintiff was then present FN44. The Court is unable to ascertain whether at the scene. Tucker Mem. [# 215] at 14-16. Reed and the excerpted transcript is from plaintiff's Young, who deny that they were at the Premises at the criminal trial or from a related hearing. time of the search, argue, in the alternative, that even

assuming they were at the Premises, their behavior-like If credited, the information in Tucker's affidavit and that of Tucker-would have been both reasonable and his trial testimony would ordinarily be sufficient to lawful. D.C. Mem. [# 227] at 4. Accordingly, in establish Tucker's reasonable belief that plaintiff resided reviewing the reasonableness of the October 1995 entry in Apartment # 2F and that he could be found there upon and search, this Court will assume that Tucker's beliefs entry. However, while plaintiff admits, in various sworn were shared by Reed and Young. statements, that he resided in the building in Apartment #

2F, he denies that he was on the Premises at the time of FN42. Those three defendants also assert a the October 1995 entry and search, and he thus disputes that Tucker saw him in the window of a second-floor a police department secretary had verified, by apartment. See Dockery Dep. (Matthews Decl. [# 219] Ex. calling Buie's house, that Buie was present. See E) at 45. Apart from the disputed fact of Dockery's Buie, 494 U.S. at 328. sighting in an apartment window, the defense cites no other evidence of plaintiff's suspected presence at the M oreover, in affirming the authority of the Premises. W hile plaintiff's denial is dubious at best, FN45 the police, armed with an arrest warrant, “to Court nevertheless must, for purposes of this summary search anywhere in [the suspect's] house” to judgment motion, construe the facts in the light most effect his arrest, the Supreme Court in Buie did favorable to plaintiff as the non-moving party. Even not address the authority of the police to assuming that defendant reasonably believed that plaintiff search an entire multi-unit dwelling. resided somewhere on the Premises, a material issue of Presumably, a judicial determination as to the fact exists with respect to the reasonableness of Tucker's reasonableness of police entries into different belief that plaintiff would be found there at the time of the units of an apartment building would involve October 1995 search. a series of separate analyses. In this case, the

only stated basis for Tucker's belief that FN45. That plaintiff was probably hidden in the plaintiff was then on the Premises is the Premises may be inferred from the fact that his disputed proof of Tucker's having spotted identification was found in a crawl space during Dockery in the window; hence, the Court need that search and that, in February 1996, he was not address whether a showing short of located in the Premises, concealed in a specially “reasonable basis” would be sufficient to constructed shelter between the floorboards of justify the police entry into portions of the the second floor and the ceiling of the first floor. Premises that were not Dockery's personal Mot. Opposing Legal Aid [# 32] at 231-34. residence. It bears noting, however, that the

level of justification mandated under Payton In the absence of uncontested evidence with respect to police entries into spaces other suggesting plaintiff's presence at the Premises, this Court than a suspect's own residence “can be no cannot conclude that the ensuing entries alleged by greater than the ‘reasonable basis' that would have been required had [the officers] arrested plaintiff-to wit, Tucker's entry into the second-floor apartment in which plaintiff concededly resided, the [the suspect] in his own home.” Big Apple Bag basement, the grocery store, the two newly renovated Co., 317 F.Supp.2d at 186 (Garaufis, J.) apartments, and plaintiff's children's apartment-were (citing Payton, 445 U.S. at 583-89 (discussing reasonable as a matter of law. See Washington Square the sanctity of the home in contrast to other Post, 720 F.Supp. at 351 n. 10 (“[I]f the entry was illegal, spaces), and United States v. Haqq, 278 F.3d the subsequent searches ... would be tainted by this illegal 44, 54 (2d Cir.2002) (Meskill, J., concurring) entry.”). (“W hile we are protected from unreasonable

government intervention in our business, FN46. Relying on M aryland v. Buie, 494 U.S. automobiles and in public, the protection we 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), enjoy in these situations is far less than the the defense contends that law enforcement ultimate protection we receive in our officers “had the right, based on the authority of homes.”)); accord United States v. Elkins, 300 the arrest warrant, to search anywhere in the F.3d 638, 646 (6th Cir.2002). house that [the suspect] might have been found ....” Tucker Mem. [# 215] at 16 (quoting Buie, W hether plaintiff had a reasonable expectation 494 U.S. at 330); see D.C. Mem. [# 227] at 17. of privacy in areas other than his own However, in Buie, in contrast to this case, the apartment is an issue not before this Court. See lawfulness of the entry itself was not in issue, as supra note 20. section 3109 in effecting a forced entry does not guarantee

3. Destruction of Property Claims that the scope of the ensuing search will be deemed

reasonable: “The general touchstone of reasonableness Plaintiff contends that defendants engaged in an which governs Fourth Amendment analysis governs the unreasonable search in violation of the Fourth Amendment method of execution of the warrant. [Accordingly,] by destroying fixtures in and portions of the Premises and [e]xcessive or unnecessary destruction of property in the by failing to secure the doors thereto, thus enabling looting course of a search may violate the Fourth Amendment, by third parties. See 3d Am. Compl. at 5-9, 11. Plaintiff even though the entry itself is lawful ....” United States v. claims damages and losses in the amount of: $27,650 in Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) (internal citations omitted). FN47 missing personal property belonging to plaintiff, his children and his common-law wife; $32,300 in lost grocery stock; $2,300 in missing cash; $7,940 in damage FN47. cases cited supra pp. 28-29. to various doors; $5,600 in damage to the structure of the building and various fixtures; and $5,800 in missing As previously discussed, the reasonableness of electrical parts, supplies and wiring. See id. at 5-8. Tucker Tucker's entry turns on a material issue of fact with respect to plaintiff's presence on the day of the search. This maintains that the search was reasonable under the Fourth Amendment and, moreover, that his conduct was same disputed fact is also key to determining the consistent with 18 U.S.C. § 3109, which authorizes law reasonableness of the scope and manner of the resulting searches and any attendant destruction of property. FN49 enforcement officers to force entry under certain circumstances. Tucker Mem. [# 215] at 16-19. Reed and Accordingly, a material issue of fact exists as to whether Young disclaim involvement in the entry into and search the manner of executing the search violated the Fourth Amendment. FN50 of the Premises, but again, in the alternative, adopt the version of events stated by Tucker. D.C. Mem. [# 227] at 5-6, 14-18. FN48. See supra pp. 45-49. C o ngress has recognized that in certain circumstances, law enforcement officers, in the course of FN49. For example, it appears that Tucker's their duty, may be constrained to force entry into various claim that he saw Dockery through the window dwellings and spaces in order to execute warrants. Thus, constitutes the defense justification for breaking pursuant to section 3109 of Title 18 of the United States down the door and for cutting holes in ceilings Code, an officer is authorized to “break open any outer or within the Premises. inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after FN50. In light of his claim that he was not notice of his authority and purpose, he is refused present at the time of the 1995 search, and thus admittance ....” 18 U.S.C. § 3109; see also Cody v. Mello, his resulting lack of personal knowledge 59 F.3d 13, 16 (2d Cir.1995) (“[I]t is well recognized that regarding the condition of the Premises ‘officers executing search warrants on occasion must following the search, plaintiff will likely face an damage property in order to perform their duty.’ ”) uphill battle in substantiating most of his alleged (quoting Dalia v. United States, 441 U.S. 238, 258, 99 damages. Plaintiff belatedly proffers affidavits S.Ct. 1682, 60 L.Ed.2d 177 (1979)). W hile explicitly from various individuals concerning the alleged referencing only search warrants, the statute has been property damage. See, e.g., Affidavit [of Ilma interpreted to apply to a “valid arrest pursuant to an arrest Davis], dated 2/22/00; Affidavit [of Everton warrant in a residence ....” Bartlett v. City of New York, Agustos], dated 11/10/03; Affidavit of George No. CV031961CPS, 2005 W L 887112, at *7 (E.D.N.Y. Crawford, dated 3/3/04; Affidavit [of Geanette Feb.11, 2005) (quoting United States v. Alejandro, 368 Dunning], dated 6/19/04; Affidavit [of Creola F.3d 130, 133 (2d Cir.2004)) (other citations omitted). Dunning], dated 6/26/04; and Affidavit of Tiara Importantly, contrary to Tucker's suggestion ( see Tucker Bullock, dated 3/26/05 (all attached as exhibits Mem. [# 215] at 17-18), an officer's compliance with

to Pl. Mem. (Tucker) [# 241] ); [Affidavit of conduct attributed to him is not prohibited by Harris A. Harding], dated 6/14/01 (Ex. B5 to federal law; or (2) where that conduct is so [Plaintiff's 9/5/05 Letter to Judge Mann] [# 259] prohibited, if the plaintiff's right not to be ). Notably, however, several of these affidavits subjected to such conduct by the defendant was were submitted after the close of discovery, not clearly established at the time of the conduct; thereby unfairly depriving the defense of an or (3) if the defendant's action was ‘objective[ly] opportunity to depose the affiants. See Tucker legal[ly] reasonable[ ] ... in light of the legal Reply [# 258] at 11-13. Others were submitted rules that were clearly established at the time it by individuals who, like plaintiff, lack personal was taken.’ ” X-Men Sec., Inc. v. Pataki, 196 knowledge of defendants' involvement in the acts F.3d 56, 65-66 (2d Cir.1999) (alterations in alleged, as they were not present at the Premises. original) (quoting Anderson v. Creighton, 483 The Court need not now resolve defendants' U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 motion to strike those affidavits; even if the (1987)) (other internal citations omitted). challenged affidavits are disregarded in connection with the pending dispositive motions, In reviewing a summary judgment motion, a court the defense is not entitled to summary judgment should ordinarily grant the motion based on qualified on the Fourth Amendment claims. The immunity where “ ‘no reasonable jury, looking at the admissibility of the affiants' testimony at trial evidence in the light most favorable to, and drawing all may, however, be an appropriate subject for an inferences most favorable to, the plaintiffs, could conclude in limine motion. that it was objectively unreasonable for the defendant[ ]’

to believe that he was acting in a fashion that did not 4. Qualified Immunity clearly violate an established federally protected right.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) Tucker and the D.C. defendants further argue that (alteration in original) (quoting Robison v. Via, 821 F.2d even if a Fourth Amendment violation had occurred in 913, 921 (2d Cir.1987)); see also Bartlett, 2005 W L connection with the 1995 search, they are entitled to 887112, at *10. Summary judgment based on qualified summary judgment on qualified immunity grounds. immunity should not be granted, however, where material Specifically, they contend that they may not be held liable issues of fact frustrate the Court's review of the because a reasonable officer at the scene would have reasonableness of the actions in question. See, e.g., Breen viewed a forced entry and unannounced search of the v. Garrison, 169 F.3d 152, 153 (2d Cir.1999) (per curiam) Premises as objectively reasonable in light of the (reversing finding of qualified immunity in light of circumstances then confronting him. Tucker Mem. [# material differences in the parties' versions of the facts 215] at 23-24; D.C. Mem. [# 227] at 14-18. FN51 regarding plaintiff's excessive force claim); Armstead v. FN51. In Harlow v. Fitzgerald, the Supreme Township of Upper Dublin, No. Civ.A. 03-CV-3608, 2004 Court announced the often-invoked standard for W L 2743451, at *4 (E.D.Pa. Nov.23, 2004). qualified immunity. The Court explained that

qualified immunity protects “government “The question of qualified immunity is independent officials performing discretionary functions ... from the merits of the underlying action and must be from liability for civil damages insofar as their examined independently of the underlying claims.” conduct does not violate clearly established Bartlett, 2005 W L 887112, at *9 (citing Saucier v. Katz, statutory or constitutional rights of which a 533 U.S. 194, 207, 121 S.Ct. 2151, 150 L.Ed.2d 272 reasonable person would have known.” 457 U.S. (2001)). Accordingly, this Court's earlier determination 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 that a material question of fact exists as to the lawfulness (1982). “Under the Harlow v. Fitzgerald of the 1995 search does not necessarily foreclose entry of standard, a government official sued in his summary judgment based on qualified immunity. individual capacity is entitled to qualified Nevertheless, such relief is inappropriate in the instant immunity in any of three circumstances: (1) if the 15-16. FN52 Plaintiff's Monell claims should not be

case, as the qualified immunity defense is based upon the same disputed facts as the defense to the underlying permitted to survive summary judgment. Fourth Amendment claims. FN52. Plaintiff's due process claim against Reed and Young is discussed supra pp. 26-30.

The defendants do not dispute that the Fourth Amendment law governing plaintiff's unlawful entry and In recognition of the unique burdens that litigation destruction of property claims was clearly established at poses to municipalities, whose liability for damages is paid the time of the October 1995 search. To the contrary, the by taxpayer dollars, the Supreme Court has limited defense argues that the search of the Premises-even if municipal liability to those cases in which the government forced and destructive to plaintiff's property-was lawful in officials or officers may be said to have been executing light of the attendant circumstances. Tucker M em. [# municipal custom or policy that “actually caused” the 215] at 23-24. However, contrary to the premise of the alleged violations. City of Canton v. Harris, 489 U.S. 378, defense motion, defendants' argument is predicated on a 385-91, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Thus, a set of facts that in fact are disputed by plaintiff. Indeed, plaintiff may sustain a claim against a municipality under because a material issue of fact exists as to whether section 1983 if she proves the existence of a municipal plaintiff was seen at the Premises just before the entry, it custom or policy the enforcement of which was “the cannot be determined whether a reasonable officer in moving force behind the constitutional violation.” Id. at Tucker's position would have believed that urgent and 389 (internal quotation marks omitted). forcible action was necessary to prevent plaintiff's escape. Accordingly, summary judgment on the basis of qualified Dockery alleges that the District is liable for his immunity is not appropriate in this case. See Breen, 169 injuries on account of its failure to train, discipline and F.3d at 152; Arum v. Miller, 331 F.Supp.2d 99, 110-11 supervise its homicide officers.3d Am. Compl. at 12-14. (E.D.N.Y.2004) (denying qualified immunity to police Even assuming arguendo that plaintiff's allegations have officers on plaintiff's excessive force claim in light of the been adequately pled, see generally Fed.R.Civ.P. 8(a)(2); “significant dispute” as to the conduct of the officers Leatherman v. Tarrant County Narcotics Intelligence and during the arrest); see also Hudson v. New York City, 271 Coordination Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, F.3d 62, 66 (2d Cir.2001) (noting that Judge Ross had 122 L.Ed.2d 517 (1993); Walker v. City of New York, 974 properly denied a defense motion for summary judgment F.2d 293, 297-99 (2d Cir.1992), they have not been on qualified immunity grounds where “the key facts substantiated by admissible evidence. Despite having obtained discovery from the District, plaintiff fails to surrounding the question of whether there was sufficient basis upon which a reasonable officer might find probable point to a specific policy, custom, practice, decision or cause to enter [plaintiff's] apartment [ ] remain in ordinance, or any training or supervising deficiency, that dispute.”). caused his constitutional rights to be violated. See, e.g., Monell, 436 U.S. at 694; City of Canton, 489 U.S. at 388 E. Monell Claims (a mere failure to supervise employees or to provide

proper training is not actionable unless the failure is so In his Monell claims, plaintiff seeks to hold the severe as to constitute “deliberate indifference” to the District liable for the actions of Reed and Young based on deprivation of plaintiff's rights). Instead, plaintiff relies an alleged “Municipal policy, practice or custom that upon an array of newspaper articles and judicial decisions violated the Fourth Amendment ...,” and on the District's discussing general police misconduct, and he assumes alleged “failure to adequately train, d[i]scipline and from this that there existed a pattern of misconduct that supervise [ ] its homicide Officers in matters of was or should have been “so obvious” to the District as to extrajurisdictional searches, seizure, and arrest[.]” 3d Am. put it on notice that future violations were likely to occur Compl. at 12-13; see id. at 14-15. Plaintiff also asserts absent remedial action. Pl. Mem. (D.C.) [# 246] at 14-22; Monell claims based on the District's alleged violation of see City of Canton, 489 U.S. at 390 n. 10. Plaintiff plaintiff's due process rights.3d Am. Compl. at 13-14, misconstrues the value and admissibility of the information proffered. six years after the events at issue here.

FN53. Earlier in this case, this Court bifurcated For purposes of a Monell claim, the “catalog of discovery and trial on plaintiff's Monell claims disquieting events [submitted by plaintiff] is not sufficient against the District. See 1/27/00 Memorandum to demonstrate a pervasive pattern of police officer and Order [# 120] at 6-7. The District indulgence in [unreasonable searches and seizures], nevertheless did not object to plaintiff's persisting in the District because of the [D.C. Police discovery demands regarding municipal policies Department's] tacit approval.” Carter, 795 F.2d at 123. and training programs, and instead provided the Indeed, “[i]f the evidence plaintiff [ ] presented here were disclosure sought. See, e.g., Defendants Pam adequate to make out a § 1983 case, then practically every Reed's and Phineas Young's Response [to] large metropolitan police force, it would seem, could be Plaintiff's First Set of Request[s] for the targeted for such liability.” Id.; see generally Amnesty Am. Production of Documents (attached as Ex. D to v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir.2004) Pl. Mem. (D.C.) [# 246] ). In light of this (affirming grant of summary judgment where plaintiffs, in exchange, the Court reopened discovery on June an action against a town for failure to train its police force, 27, 2003 “for the limited purpose of allowing had “neglected to offer any evidence ... as to the purported plaintiff to serve discovery demands on inadequacies in the Town's training program and the defendants Soulsby and Dreher.” 6/27/03 M & O causal relationship between those inadequacies and the [# 155]. As plaintiff sought and obtained alleged constitutional violations.”); Hudson, 271 F.3d at discovery on his Monell claims, he will not be 66, 67 n. 6 (affirming Judge Ross' granting of defense unfairly prejudiced by the Court's consideration motion for summary judgment on M onell claim on the of the District's challenge to those claims. ground that plaintiff “had not adduced evidence that any

of the City's practices or policies contributed to, or caused, The cases upon which plaintiff relies address a wide the allegedly unconstitutional search.”); Sagendorf-Teal v. range of police conduct, from car ride-alongs and stops to County of Rensselaer, 100 F.3d 270, 276-77 (2d Cir.1996) false arrest, the majority of which is inapposite to the (affirming grant of summary judgment in favor of County conduct at issue in this case. Pl. Mem. (D.C.) [# 246] where “the trial court was not presented with any evidence at 15-17. Further, although plaintiff maintains that the very or allegation of an official policy” pursuant to Monell ); existence of the cited cases demonstrates the District's Washington Square Post, 720 F.Supp. at 343-45 (granting failure to investigate claims made against its officers, see the City summary judgment on Monell claims). id. at 17-18, no conclusion may reasonably be drawn from

most of the cases as to the extent of any investigation by As plaintiff has failed to present any evidence from the District into alleged misconduct or as to the existence which a reasonable juror could conclude that the District of any disciplinary action. Plaintiff erroneously assumes was the moving force behind any violation of his from the facts alleged by the plaintiffs in those cases that constitutional rights, the District's motion for summary the police engaged in misconduct. In fact, the existence of judgment on the Monell claims should be granted. the lawsuits cited by plaintiff establishes “no more than

notice to the city that allegations had been made.” Carter F. Tort Claims against Reed, Young, and the District v. District of Columbia, 795 F.2d 116, 123 for 1995 Search (D.C.Cir.1986). Plaintiff's reliance on a Washington Post newspaper article, see Unmarked Ex. to Pl. Mem. (D.C.) Plaintiff alleges that, following their unreasonable and [# 246], which described a suit charging police unauthorized search of the Premises, Reed, Young and the misconduct in connection with mass arrests of protesters District “intentionally and maliciously” failed to replace doors and locks to the Premises, thereby causing the “loss at a demonstration in 2002, is likewise unavailing, as the alleged misconduct bears no resemblance to the of [plaintiff's] business and private property.” 3d Am. allegations in this case and, moreover, occurred more than Compl. at 10. Liberally construing plaintiff's complaint, he

appears to assert common law claims against those D.C. defendants based on the tort theories of trespass to In the present case, for the same reasons that chattels, trespass to land, and conversion. See id.; 4/28/05 apply to the Court's Fourth Amendment analysis of the M & O at 5-6 n. 5. The D.C. defendants seek summary reasonableness of defendants' entries into and searches of the Premises, FN55 summary judgment is inappropriate with judgment on these claims, on the ground that plaintiff fails to establish any wrongful conduct on their part, falsely respect to plaintiff's tort claims against Reed, Young and alleges that defendants left the Premises unsecured, and, the District. Because the parties' dispute over plaintiff's further, cannot prove “the origin or value of the allegedly presence at the Premises poses material issues of fact as to lost property.” D.C. Mem. [# 227] at 18-20. the lawfulness of defendants' entry, the Court cannot find

Under New York law, which would appear to apply as a matter of law that defendants' forced entry and search, to plaintiff's common law tort claims arising out of acts which resulted in damage to plaintiff's real property, was occurring in New York, FN54 a plaintiff may establish “authorized” and, thus, was not a trespass. See trespass to land where he proves “an unauthorized entry Voskerchian v. United States, No. 98-CV-0335E(M), upon private property.” Rager v. McCloskey, 305 N.Y. 75, 1999 W L 66709, at *4 (W .D.N.Y. Feb.10, 1999) (“New 79, 111 N.E.2d 214 (1953). “To state a claim for trespass York cases support the proposition that a law enforcement to chattels under New York law, plaintiffs must establish officer's privilege [to trespass pursuant to a warrant] that defendants ‘intentionally, and without justification or remains limited to constitutional searches and seizures.”) consent, physically interfered with the use and enjoyment (citing 1090 Jericho Corp. v. Elias, 164 A.D.2d 852, 559 of personal property in [plaintiffs'] possession,’ and that N.Y.S.2d 358, 361 (2d Dep't 1990) (affirming the denial plaintiffs were thereby harmed.” In re Jetblue Airways of law enforcement officers' motion to dismiss trespass Corp. Privacy Litig., 379 F.Supp.2d 299, 327 claim premised upon a search executed pursuant to an (E.D.N.Y.2005) (citing Kuprewicz, 771 N.Y.S.2d at 807). allegedly invalid warrant), and People v. Johnson, 66 Finally, “ ‘[c]onversion is the unauthorized assumption N.Y.2d 398, 414, 497 N.Y.S.2d 618, 488 N.E.2d 439 (1985) (Titone, J., concurring)). Summary judgment and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's dismissing the tort claims against these defendants is thus inappropriate at this juncture. FN57 rights.’ ” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 2006 W L 2391162, at *3 (2d Cir. Aug.21, 2006) (quoting Vigilant Ins. Co. of Am. v. Hous. Auth., 87 FN55. See supra pp. 45-51. N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995) (internal quotation marks omitted)). FN56. However, as discussed in the next section of this opinion, plaintiff's tort claims and

FN54. New York is the state with the strongest constitutional claims all suffer from the same interest in adjudicating alleged torts committed flaw with respect to plaintiff's demand for against its citizens within the state's boundaries. damages for loss of business. In addition, See AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, because real property and the fixtures attached 270 (2d Cir.1992) (“In tort actions [presenting thereto cannot properly be characterized as choice of law questions], New York applies a chattels or personal property, see Roemer & so-called interest analysis .... Under such an Featherstonhaugh, P.C. v. Featherstonhaugh, analysis, the law of the jurisdiction having the 267 A.D.2d 697, 699 N.Y.S.2d 603 (3d Dep't greatest interest in the litigation applies.”) 1999) (“[W here] the property claimed to have (internal citations omitted). “[T]he significant been converted is real property ... conversion factors for this analysis are the parties' domiciles, will not lie.”), plaintiff cannot state a claim for and the locus of the tort.” Lee v. State of New either trespass to chattels or conversion with York Dep't of Corr. Servs., No. 97 Civ. respect to the damage he alleges was caused to 7112(DAB), 1999 W L 673339, at *3 (S.D.N.Y. the doors and ceilings of his building, or to other Aug.30, 1999). fixtures. FN57. As defendants have neither raised nor sentence in this proceeding. briefed the issue, the Court will not here opine on the cognizability of a tort claim against A plaintiff who seeks to recover for lost profits or defendants for the criminal acts of third parties in business income must first demonstrate that the damages allegedly looting the Premises. alleged “result as the natural consequences of a breach of contract or the commission of a tortious act.” Levine v. Am. Fed. Group, Ltd., 180 A.D.2d 575, 580 N.Y.S.2d G. Damages for Loss of Business 287, 288 (1st Dep't 1992) (citation omitted); see Merlite In his third amended complaint, plaintiff suggests that Indus., Inc. v. Valassis Inserts, Inc., 12 F.3d 373, 376 (2d defendants caused a loss of business profits by unlawfully Cir.1993) (citing Kenford Co. v. County of Erie, 67 entering and searching his grocery store, and by leaving N.Y.2d 257, 260, 502 N.Y.S.2d 131, 493 N.E.2d 234 the entrance doors to it unreplaced, thereby allowing (1986)); M edia Logic Inc. v. Xerox Corp., 261 A.D.2d looting by third parties and damage to plaintiff's business. 727, 689 N.Y.S.2d 762, 766 (3d Dep't 1999) (“[Plaintiff's] See 3d Am. Compl. at 5, 17-18. Plaintiff estimates his ... failure to prove the causal relationship between losses at $563,942 in past profits and $1,800,000 in future defendant's conduct and the alleged damage necessitated profits. See id. FN58 Defendants challenge plaintiff's demand a dismissal of this damage claim.”) (internal citations for damages, denying that their conduct was tortious or omitted). Additionally, the plaintiff must prove damages unlawful and further asserting that plaintiff has failed to with “sufficient certainty,” such that damages are not provide any evidence in support of his claim for damages. merely “speculative or contingent.” Levine, 580 N.Y.S.2d See Tucker M em. [# 215] at 19-21; D.C. Mem. [# 227] at at 288; see Kenford, 67 N.Y.2d at 261, 502 N.Y.S.2d 131, 18-19. Even assuming that plaintiff could prove that 493 N.E.2d 234 (reviewing a breach of contract claim and defendants' conduct was unlawful, he still could not stating that damages alleged must not be “speculative” and recover damages for lost profits, as the losses he alleges must be calculated with “reasonable certainty”); Caulfield are entirely speculative. FN60 v. Barristers Abstract Corp., No. 91 CV 5155, 1996 W L FN58. Plaintiff's pleading asserts that the loss of 382633, at *1 (E.D.N.Y. July 2, 1996) (declining to award “private property and destruction of private damages to plaintiff under the federal RICO statute, 18 premises” totals $40,800 for the grocery store U.S.C. § 1964(c), “[b]ecause plaintiff ha[d] not furnished and $37,690 for “the premises and apartments the Court with any evidentiary support for the Court to

....” 3d Am. Compl. at 18. Plaintiff miscalculates begin calculating any damage award ....”); Ashland Mgmt. the sum of these figures as $78,690 in damages v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 for loss of property. N.E.2d 1007 (1993) (“The law does not require that [damages] be determined with mathematical precision. It FN59. Defendants maintain in the alternative that requires only that damages be capable of measurement if plaintiff's lawsuit is permitted to proceed, based upon known reliable factors without undue additional discovery in the form of records from speculation.”). As part of this burden, a plaintiff must also the State of New York will be required to verify provide a reasonable means of and basis for calculating plaintiff's ownership of the Three Star Grocery damages. See Mehta v. New York City Dep't of Consumer store. Tucker Mem. [# 215] at 18; [D.C.'s] Affairs, 162 A.D.2d 236, 556 N.Y.S.2d 601, 602 (1st Affirmation in Opposition to Plaintiff's Motion Dep't 1990). New businesses face a “higher evidentiary for Third Amended Complaint to Conform with burden in satisfying this standard ‘for the obvious reason Evidence [# 169] at 6-7; 4/28/05 M & O [# 207] that there does not exist a reasonable basis of experience at 13. upon which to estimate lost profits with the requisite degree of reasonable certainty.’ ” Kidder, Peabody & Co. FN60. To the extent that plaintiff attempts to v. IAG Int'l, 28 F.Supp.2d 126, 131 (S.D.N.Y.1998) base his demand for lost profits on his continued (quoting Kenford, 67 N.Y.2d at 261, 502 N.Y.S.2d 131, imprisonment, this demand is futile, as plaintiff 493 N.E.2d 234). Indeed, New York courts have held that may not challenge his conviction and prison lost profits ordinarily will not be awarded unless the take care of other business.”). This interruption in business business is “firmly established and in operation for a is not, however, reflected in plaintiff's lost profits estimate. definite period of time.” Sam & Mary Housing Corp. v. Even more importantly, in forecasting the store's earnings, Jo/Sal Mkt. Corp., 121 Misc.2d 434, 468 N.Y.S.2d 294, plaintiff overlooks the potentially detrimental impact of 301 (Sup.Ct. Queens County 1983). his extended incarceration and absence from the store, to say nothing of market conditions or competition. FN63 In the instant case, plaintiff arrives at his lost past and future profits by extrapolating from the $18,877 in FN62. Although the 1995 search did not occur profits he allegedly earned during the first six months of until the end of October, plaintiff has proffered the store's operation in 1994.3d Am. Compl. at 17. no evidence as to the store's profits during the Plaintiff further calculates a 10 percent rate of growth first nine months of that year.

from his estimated yearly profit totals to state annual

profits ranging from $41,529 to $89,021 for the years FN63. Contrary to defendants' characterization 1995 through 2003. Id. As the sole evidence in support of of the record, plaintiff acknowledges the his proposed method of calculation, plaintiff submits a tax existence of various receipts for stock and return for 1994 stating his profits as $18,877. See [1994 purchases related to his grocery store. See Pl. Tax Return] (attached to 3d Am. Compl. [# 154] ). FN61 Dep. [# 219] at 80-81. Plaintiff maintains, Plaintiff fails, however, to prove that his loss was the however, that he cannot provide defendants with “natural consequence[ ]” of defendants' constitutional or these receipts, as they were seized by law common law torts. Levine, 580 N.Y.S.2d at 288. enforcement officers during an August 1995 search of plaintiff's Maryland residence. Id.;

FN61. As pages of the transcript from plaintiff's 7/5/01, 699 N.Y.S.2d 603 Pl. Aff. (attached as deposition have been omitted from Tucker's Ex. L to Pl. Mot. Appt. of Counsel [# 141] ) at 1 (“On August 10, 1995, numerous FBI agents, submissions to this Court, it is unclear from the record whether this tax return was filed with the D.C. police officers and Maryland State Police Internal Revenue Service. conducted a search at 4165 Southern Avenue,

Apt # T2, and seized all [of plaintiff's] personal business documents for his Three Star[ ] Grocery In calculating his lost profits, plaintiff ignores the fledgling nature of his business. Because plaintiff's Store .... [Plaintiff] ... made numerous motions in store-which at most reported only six months of profits in Court [seeking the] return of his property 1994 and apparently no profits in 1995 -can in no way business documents, but all his efforts were without success.”). Because the disputed receipts be deemed “firmly established,” plaintiff cannot meet the high evidentiary burden that attends his demand for lost and business documents would not alter the profits. Sam & Mary Housing Corp.., 468 N.Y.S.2d at Court's conclusion that the grocery store has an 301; see Kenford, 67 N.Y.2d at 261, 502 N.Y.S.2d 131, insufficient record of past earnings from which to 493 N.E.2d 234. Indeed, the conclusion that the store's calculate lost profits, the Court need not address profits are incapable of prediction with “reasonable plaintiff's contention that potential documentary certainty” is supported by plaintiff's own submissions. For evidence was wrongfully seized from him. example, plaintiff testified at his deposition that he closed

the store for at least part of 1995 while he applied for On this record, no rational fact-finder could calculate business licenses and insurance, and addressed other with “reasonable certainty” the profits that would be owed problems. Dockery Dep. [# 219] at 34, 80-81 to plaintiff as a result of any wrongful conduct by (Matthews Decl. Ex. E); see also 8/18/05 Pl. Aff. [# 246] defendants. Accordingly, this Court recommends that ¶ 3 (“On October 23, 1995, the Three Star[ ] Grocery defendants be granted summary judgment with respect to Store was operable, but it was closed to the public when plaintiff's damages claim for lost profits. See Schonfeld v. the police [broke in], because ... plaintiff had to go and Hilliard, 218 F.3d 164, 172-73 (2d Cir.2000) (affirming the district court's granting of summary judgment against amended complaint be granted in part and denied in part, plaintiff in a breach of contract action where lost profits and that plaintiff's cross-motions for summary judgment be could not be determined with “reasonable certainty”). denied in their entirety.

Specifically, this Court recommends dismissal of III. Plaintiff's Cross-Motions for Summ ary Judgm ent plaintiff's tort claim against Tucker, his claims concerning

the constitutional rights of his children and Ilma Davis, Plaintiff, without legal argument, cross-moves, in the and his official capacity claims against Dreher and concluding paragraphs of his opposition papers, for Soulsby. This Court further recommends that defendants summary judgment on all claims asserted in his third be granted summary judgment with respect to plaintiff's amended complaint. See Pl. Mem. (Tucker) [# 241]; Pl. due process claims, his demand for lost profits, his Mem. (D.C.) [# 246]. Although plaintiff was not required individual capacity claims against Dreher and Soulsby, to provide further affidavits in support of his and his Monell claims, but that defendants be denied cross-motion, he submitted two additional affidavits summary judgment with respect to plaintiff's Fourth summarizing his version of the events in question. See Amendment claims against Tucker, Reed, and Young, and 8/18/05 Affidavit of Jasper Dockery in Support of Cross the common law tort claims against Reed, Young and the Motion for Summary Judgment on Complaint (unmarked District. Finally, plaintiff's cross-motions should be denied exhibit to Pl. Mem. (D.C.)); 8/3/05 Plaintiff Affidavit in in their entirety.

Support of Cross-Motion for Summary Judgment

(unmarked exhibit to Pl. Mem. (Tucker)). These affidavits Any objections to the recommendations contained are largely redundant of plaintiff's earlier submissions in herein must be filed with the Honorable Allyne R. Ross on this case and add little, if anything, to the record before the or before September 19, 2006. Failure to file objections in Court. Moreover, when read in tandem with plaintiff's a timely manner may waive a right to appeal the District briefs opposing defendants' dispositive motions, plaintiff's Court order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), affidavits merely underscore the disputed nature of the 6(e), 72; Small v. Sec'y of Health & Human Servs., 892 material facts underlying his Fourth Amendment and F.2d 15, 16 (2d Cir.1989). common law tort claims.

FN64. Fed.R.Civ.P. 56(a) (“A party seeking The Clerk is directed to docket and file this Order via to recover upon a claim, counterclaim, or ECF, and to mail a copy to plaintiff (# 39631053) at U.S. cross-claim or to obtain a declaratory judgment Penitentiary, P.O. Box 2099, Pollock, LA 71462. may ... move with or without supporting

affidavits for a summary judgment in the party's SO ORDERED.

favor upon all or any part thereof.”).

E.D.N.Y.,2006. M ost importantly, each of the claims that are the

subject of plaintiff's cross-motion have already been Dockery v. Tucker Not Reported in F.Supp.2d, 2006 W L 5893295

addressed in this opinion and are either without merit, are worthy of summary judgment in favor of defendants, or (E.D.N.Y.)

are attended by material issues of fact that preclude END OF DOCUMENT

summary judgment in favor of either party. For the

aforesaid reasons, plaintiff's cross-motions should be

denied in their entirety.

CONCLUSION

For the reasons set forth above, it is the

recommendation of this Court that defendants' motions to

dismiss and for summary judgment on plaintiff's third

Not Reported in F.Supp.2d, 1999 W L 222603 (W .D.N.Y.)

(Cite as: 1999 W L 222603 (W .D.N.Y.))

May of 1997 alleging discrimination by the County. Id. at 3. It is unclear what had been the subject of the earlier charge and whether and/or how it had been resolved. Ciancio filed the Only the W estlaw citation is currently available. charge from which this action stems on January 16, 1998 United States District Court, W .D. New York. claiming that the County's and/or the Department's failure to promote her constituted retaliation for her previous filing of an Christine CIANCIO, Plaintiff, EEOC charge; she amended that charge February 5, 1998 to v. add a claim of race discrimination based upon the same events. Dennis GORSKI, Erie County Executive, Deborah After having received a right-to-sue letter from the EEOC on Merrifield, Commissioner of DSS, Joan Guarino, 1st Deputy August 15th, Ciancio timely commenced this action, claiming Commissioner of DSS, Richard Angrisano, Chief Personnel that the failure to promote her was motivated by retaliatory Supervisor Erie County Dept. Personnel, Frank DeCarlo, animus and/or by discrimination on the basis of her race, color, Special Investigator (SID), Kevin Duggan, Director of Heap national origin, age and/or an unspecified disability. Id. at 4. and Energy, Marcia Olszewski, Caseworker/Section President Local 815, and Valarie Redden, Energy Crisis All defendants contend that the Complaint should be W orker # 2 Heap, Defendants. dismissed because individuals may not be sued under Title No. 98-CV-0714E(SC). VII- see Tomka v.. Seiler Corp., 66 F.3d 1295, 1313-1317 (2d Cir.1995)-and Ciancio has named only individuals as April 14, 1999. defendants herein. This Court agrees, except with respect to Judge John T. Elfvin, Pro Se, Kenmore, for the Plaintiff. defendant Gorski, who is sued herein as “Erie County Executive,” and defendant Merrifield, who is sued as Olszewski-Timothy Connick, Esq., c/o CSEA, Inc., Albany, Commissioner of Social Services. Construing the Complaint Remaining Defendants-Kristin Klein W heaton, Esq., Asst. liberally in light of the plaintiff's pro se status- see Haines v. County Attorney, Buffalo, for the Defendant. Kerner, 404 U.S. 519, 520 (1972) (per curiam)-, this Court finds that the plaintiff's naming of Gorski and Merrifield MEMORANDUM and ORDER sufficiently names the County and the Department and brings such entities before this Court as defendants. See Kentucky v. ELFVIN, S.D.J. Graham, 473 U.S. 159, 165-167 (1985) (discussing Plaintiff Ciancio, proceeding pro se, commenced this “official-capacity” suits). FN2 Accordingly, the plaintiff's Title action November 12, 1998 by filing a Complaint containing VII claims against Gorski and Merrifield in their official claims under Title VII of the Civil Rights Act of 1964. capacities will not be dismissed for that reason. Although such Presently before this Court are Olszewski's December 14, 1998 defendants have not addressed the question, it is not clear that motion to dismiss the Complaint as to her and the remaining an official-capacity suit is the proper vehicle for recovery defendants' January 5, 1998 motion to dismiss the Complaint under Title VII. See, e.g., Gray v. Shearson Lehman Bros., as to them, each of which is brought pursuant to Rule 12(b) of Inc., 947 F.Supp. 132, 136 (S.D.N.Y.1996) (finding that the Federal Rules of Civil Procedure (“FRCvP”). For the official-capacity suits are not proper under Title VII) (citing reasons hereinbelow stated, Olszewski's motion will be granted cases). The County, of course, may properly be made a and the others' will be granted in part and denied in part. defendant in a Title VII suit-42 U .S.C. § 2000e(a, b)-and any According to the Complaint and attachments thereto, recovery against the Department (assuming that it is a separate, Ciancio was denied promotion by the County of Erie to two suable entity) would doubtless be paid by the County. positions at the County's Department of Social Services in Therefore, in the interest of eliminating undue complication October 1997. Complaint, at 6-7 & Charges of Discrimination without affecting the substantial rights of the parties, this Court attached thereto. Previously, she had filed a charge with the will sua sponte substitute the County as the defendant in this Equal Employment Opportunity Commission (“the EEOC”) in Not Reported in F.Supp.2d, 1999 W L 222603 (W .D.N.Y.)

(Cite as: 1999 W L 222603 (W .D.N.Y.)) action in the place and stead of Gorski and Merrifield. FRCvP national origin, age and disability because Ciancio did not 21 (“[p]arties may be dropped or added by order of the court include such in either her original administrative charge or the on motion of any party or on its own initiative at any stage of amended charge and because those claims are not “reasonably the action and on such terms as are just”); Cimemotion NV v. related” to the claims raised therein. See Butts v. City of New Lorimar-Telepictures Corp., 1989 W L 120083, *6 (S.D.N.Y. York Dept. of Housing, 990 F.2d 1397, 1402-1403 (2d Oct. 5, 1989) (non-party over whom court could exercise Cir.1993). Furthermore, age and disability discrimination are personal jurisdiction would be added as a defendant sua sponte not actionable under Title VII-such are within the purview of under FRCvP 21 “in the interest of the efficient administration the Age Discrimination in Employment Act, 29 U.S.C. §§ of justice”). 621-634, and the Americans with Disabilities Act, 42 U.S .C. §§ 12101-12213, respectively. FN4 However, the Court finds that However, to the extent that Ciancio seeks to advance Cianco's claim of discrimination on the basis of her color is claims against CSEA Local 815 by naming Olszewski, she sufficiently similar to her race discrimination claim that the must fail. Such union was not named as a respondent in her exercise of jurisdiction over that claim is appropriate. EEOC charge and the plaintiff has not demonstrated that the

union had an identity of interest with her employer which might Accordingly, it is hereby ORDERED that defendant warrant disregarding the failure to have raised any charge Olszewski's motion to dismiss is granted, that the remaining against it before the EEOC. See Vital v. Interfaith Medical defendants' motion to dismiss is granted in part and denied in Center, 168 F.3d 615, 1999 W L 76804, *3-*4 (2d Cir. Feb. 19, part, that all claims in the Complaint are dismissed except for 1999). There is also no evidence that the union had known the plaintiff's claims under Title VII of the Civil Rights Act of about Cianco's EEOC charge or had participated in any 1964 for discrimination on the basis of race and/or color and investigation or conciliation effort that may have ensued. for retaliation against defendants Gorski and Merrifield in their Furthermore, construing the Complaint to assert a claim for official capacities, that the County of Erie is substituted in the breach of the union's duty of fair representation pursuant to place and stead of Gorski and Merrifield, that the County shall serve and file an Answer within 30 days of the entry of this section 301 of the Labor Management Relations Act would be futile, as such a claim would be barred by the applicable Order and that the caption in this action shall be amended to six-month limitations period. Id. at *4. read:

The individual employees and representatives of the

County also seek to strike “any reference to punitive damages

in plaintiff's complaint.” Defendants' Memorandum of Law

filed January 5, 1998, at 5. This Court finds no reference in the

Complaint to punitive damages-the form complaint utilized by

Ciancio states that appropriate “injunctive orders, damages,

costs and attorney's fees” are requested-, but Ciancio strongly

opposes such aspect of the defendants' motion, arguing that

“bla[t]ant discrimination with malic[ious] intent can not be

taken lightly.” Affidavit of Christine Ciancio sworn to January

26, 1999, at 6. However, under the Civil Rights Act of 1991,

punitive damages are not available against a municipal entity

that has violated Title VII, regardless of the egregiousness of

such defendant's (or its agent's) discriminatory or retaliatory

conduct. 42 U.S.C. § 1981a(b)(1). Therefore, to the extent that Ciancio seeks to recover the same, she is precluded therefrom.

Finally, this Court lacks jurisdiction over the plaintiff's

claims premised upon alleged discrimination on the basis of

Not Reported in F.Supp.2d, 1999 W L 222603 (W .D.N.Y.)

(Cite as: 1999 W L 222603 (W .D.N.Y.))

”CHRISTINE CIANCIO,

Plaintiff,

-vs-

COUNTY OF ERIE,

Defendant.” FN1. The plaintiff now states that only one position admonished to comply with such rule in the future is at issue because the second position was temporary and with similar rules in other Circuits. in nature. Affidavit of Christine Ciancio sworn to

January 26, 1999, at 2. W .D.N.Y.,1999.

FN2. The Court notes that the individual Ciancio v. Gorski representatives and employees of the County, Not Reported in F.Supp.2d, 1999 W L 222603 (W .D.N.Y.)

including Gorski and Merrifield, are represented END OF DOCUMENT

herein by the County Attorney.

FN3. The plaintiff argues that this Court may consider communications to EEOC officials in which she had

identified allegedly unlawful conduct which had not

been included in the administrative charge. See

Barone v. Hackett, 602 F.Supp. 481, 484 (D.R.I.1984) (defendant who was identified and alleged to have discriminated against plaintiff in an

EEOC Intake Questionnaire but not in the charge

could be sued under the circumstances of that case).

W hether or not such proposition is correct, Ciancio

has presented nothing that would indicate that she had

identified to the EEOC any conduct by the union or

Olszewski which is alleged to have been unlawful.

FN4. This Court notes that the defendants also argue that individuals are not liable under the Age

Discrimination in Employment Act or the Americans

with Disabilities Act. W hile that contention need not

be addressed, the undersigned disapproves of their

having relied primarily upon and cited the Court to

the unpublished decision of our Court of Appeals in

Martin v. Chemical Bank, 129 F.3d 114 (Table), 1997 W L 701359 (Nov. 10, 1997), which-pursuant to section 0.23 of the Rules of the Second Circuit-“shall

not be cited or otherwise used in unrelated cases

before this or any other court.” The parties are

[1] Plaintiff’s failure to oppose defendant’s motion does not preclude the court from recommending disposition of its motion. , e.g. , White v. Mitchell , No. 99- CV-8519, 2001 WL 64756, at *1 (E.D.N.Y. Jan. 18, 2001). Because a motion to dismiss tests only the legal sufficiency of a plaintiff’s complaint, the court can determine a complaint’s sufficiency as a matter of law based on its own reading of the complaint and knowledge of the relevant case law. McCall v. Pataki , 232 F.3d 321, 322-23 (2d Cir. 2000). Before granting an unopposed motion, however, the court must make a threshold finding that the moving party has met its burden demonstrating entitlement to that relief. McCall , 232 F.3d at 323. 4

[2] All unreported decisions have been appended to this report for the convenience of the pro se plaintiff. 7

Case Details

Case Name: Gonzalvo v. Brown

Court Name: District Court, N.D. New York

Date Published: Jul 10, 2013

Docket Number: 9:11-cv-00909

Court Abbreviation: N.D.N.Y.