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HOWARD v. SCHOBERLE

October 5, 1995

Frances Howard and Sameerah Joyner, A Minor, By Frances Howard, Her Guardian, Plaintiffs, against Detective Bert Schoberle; John and Jane Doe Police Officers #'s 1-15; The New York City Police Department; The City of New York; Special Agent Pauline Wight, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 On May 20, 1992, New York City police officers and a federal agent from the Bureau of Alcohol, Tobacco and Firearms ("BATF") forcibly entered and searched a Manhattan apartment. Plaintiffs Frances Howard and her thirteen year-old daughter Sameerah Joyner resided in the apartment and were on the premises when the search was executed. Plaintiffs contend that the search violated their civil and constitutional rights and seek compensatory and punitive damages. Defendants include fourteen New York City police officers, one BATF agent, the New York City Police Department ("NYPD"), and the City of New York ("City").

 Plaintiffs' Complaint contains six claims for relief and is brought under 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments to the United States Constitution, and state law. Plaintiffs first allege that they were arrested without probable cause in violation of their Fourth and Fourteenth Amendment rights. Second, plaintiffs contend that their Fourth Amendment rights were violated when they were strip searched without their consent. Third, plaintiffs claim that the search of their apartment was carried out in an unreasonably destructive manner in violation of the Fourth Amendment. Count Four of the Complaint alleges that the City and the NYPD are liable for the unconstitutional actions of its officers because those actions were the result of municipal and police department policies. Counts Five and Six allege, respectively, the state law torts of false arrest and imprisonment and malicious prosecution. Finally, Count Seven seeks to hold the City and the NYPD liable for the negligent hiring, training and supervision of the defendant officers.

 The City Defendants now move for summary judgment on plaintiffs' first, second, fifth and sixth claims. The BATF agent moves for summary judgment on all claims against her. For the reasons set forth below, both motions are granted in part and denied in part. *fn1"

 I. BACKGROUND

 Certain facts are not disputed. In May, 1992, Detective Bert Schoberle ("Det. Schoberle") received information from a confidential informant that several individuals were packaging and storing cocaine at an apartment located on 129th street in Manhattan. See Affidavit of Bert Schoberle, dated January 9, 1995 ("Schoberle Aff."), at P 4. The informant also stated that he had observed large amounts of cash and a handgun in the apartment. Id. Based on this information, Det. Schoberle obtained a warrant to search the apartment. See City Defendants' Rule 3(g) Statement ("City Rule 3(g)"), at P 5. The warrant authorized the NYPD to enter the apartment without prior notice and to search for narcotics, narcotics paraphernalia and weapons. See Exhibit A to City Rule 3(g), dated May 14, 1992. In addition, the warrant named four males who "utilized" the apartment and authorized the police to search them as well. Id.

 On May 20, 1992, a team of NYPD officers, supervised by Lieutenant Omar Mendez and Sergeant Joseph Felder, assembled in order to execute the search warrant. See Schoberle Aff. at P 6. Det. Schoberle was part of the team and was designated to conduct the actual search. Id. Because it was anticipated that firearms would be present at the apartment, the team also included Pauline Wight, a special agent with the BATF ("S/A Wight"). BATF agents occasionally accompany NYPD officers on warrant executions as part of project Achilles, a federal program aimed at identifying and prosecuting those individuals involved in drug trafficking and violent criminal activities while carrying or using firearms. See Affidavit of Richard Curd, BATF Agent, dated November 7, 1994, at P 4.

 a. Entry Into the Apartment

 The team then travelled to the apartment to execute the warrant. As the warrant authorized "no knock" entry, the team, led by Det. Schoberle and several other officers, forcibly entered the apartment by using a hydraulic device to spread the doorframe and disengage the lock. See Schoberle Aff. at P 7. Four people were on the premises when the officers entered the apartment: i) Plaintiff Frances Howard ("Howard"), who identified herself as a resident of the apartment; ii) Dennis Joyner ("Joyner"), Howard's nineteen year-old son who also acknowledged that he was a resident of the apartment; iii) Plaintiff Sameerah Joyner ("Sameerah") Howard's daughter, who gave her age as thirteen and stated that she lived in the apartment; and iv) Kalima Shabizz, a visiting school friend of Sameerah Joyner who gave her age as twelve. Id. At gunpoint, the officers placed the four occupants on the living room floor and handcuffed them. See Deposition of Frances Howard, ("Howard Dep."), at pp. 54, 57; Affidavit of Dennis Joyner, dated January 26, 1995, at P 3; Deposition of Sameerah Joyner ("S. Joyner Dep."), at pp. 35-37. The search warrant did not identify any of these four individuals.

 Much of the disagreement in this case centers over what happened during the time that plaintiffs were being detained. Both parties agree that Det. Schoberle conducted an initial sweep of the entire apartment, consisting of a living room, kitchen and several small bedrooms adjacent to a narrow hallway. See City Rule 3(g) at P 10; Schoberle Aff. at P 8. There is also no dispute that Det. Schoberle broke down the locked door of one of the apartment's bedrooms during this search, or that this bedroom belonged to a border who had rented the room from Howard. See Howard Dep. at pp. 22-25, 55-56. However, the parties disagree over what Det. Schoberle found in the bedroom. Det. Schoberle claims that he observed a number of empty plastic vials dispersed around the room and a clear plastic bag containing a white substance under the bed; Plaintiffs claim that Det. Schoberle did not observe any contraband during this initial search. See Schoberle Aff. at P 8; Deposition of Lieutenant Omar Mendez ("Mendez Dep."), at p. 86; Plaintiffs' Counter Rule 3(g) Statement to City Defendants' Motion for Summary Judgment ("Plaintiffs' (City) Counter-Rule 3(g)"), at P 11. After Det. Schoberle's initial sweep of the apartment, both parties agree that Howard and Joyner were placed under arrest. See Schoberle Aff. at P 12; Plaintiffs' (City) Counter-Rule 3(g) at P 12.

 B. S/A Wight's Involvement

 S/A Wight entered the apartment with the search team and helped secure the premises, although she then apparently remained in an outer hallway while the NYPD officers continued the raid. See Mendez Dep. at p. 143; Wight Dep. at p. 64. After Howard and Joyner were arrested, one of the NYPD officers asked S/A Wight, who was the only female officer on the search team, to search the females in the apartment. See Wight Dep. at p.64. Although Wight stated that she was not given any direction as to how to conduct the searches, Plaintiffs imply that an NYPD officer told Wight to strip search the women. See Plaintiffs' Rule 3(g) Statement in Opposition to Defendant Wight's Motion for Summary Judgment ("Plaintiffs' (Wight) Counter-Rule 3(g)"), at P 10.

 S/A Wight then strip searched the Plaintiffs separately behind the closed doors of one of the bedrooms. See Wight Dep. at 64; Howard Dep. at p. 60. Only S/A Wight and the Plaintiff being searched were present during each search. Id. S/A Wight first took Howard into the bedroom and had her remove her clothing, which S/A Wight inspected for weapons and contraband. See Howard Dep. at pp. 168-72. She then made a visual inspection of Howard, with the only physical contact being a touch on the hair to ensure that weapons or contraband were not concealed there. Id. S/A Wight then repeated this process with Sameerah and her friend Kalima Shabizz. See S. Joyner Dep. at pp. 40-43; Wight Dep. at pp. 64-65. Nothing was recovered from these searches.

 C. Search of the Apartment

 After the strip searches were completed, all four individuals were removed to the 32nd Precinct Station House. Sameerah was detained at the station house, handcuffed to a bench, for between two and three hours and was then released to the custody of her grandmother. See S. Joyner Dep. at pp. 47-50. Howard was held in police custody until the following day, when she was arraigned and then released. See Howard Dep. at pp. 72-83.

 After the Plaintiffs were removed from the apartment, Det. Schoberle undertook a more thorough search of the premises. In the bedroom where he claims to have initially observed the empty plastic vials and plastic bag with a white substance, both parties agree that Det. Schoberle found 102 vials filled with cocaine and $ 2,102.00 in cash. See Schoberle Aff. at P 10; Plaintiffs' (City) Counter-Rule 3(g) at P 17. In the living room, under a couch, Det. Schoberle found a plastic bag containing 100 vials of cocaine and another plastic bag containing marijuana. See Schoberle Aff. at P 10; Plaintiffs' (City) Counter-Rule 3(g) at P 18. Although Plaintiffs were not present during this search, they contend that furniture, clothing and property were unnecessarily damaged or destroyed. See Howard Dep. at pp. 87, 92. Specifically, all doors were removed from their hinges, clothing was slashed or ripped apart and mattresses and couches were slashed. Id.

 S/A Wight was present at the raid-site during at least some of the time that the NYPD searched Howard's apartment, although she apparently remained in an outer hallway and did not participate in the search. See Wight Dep. at p. 74; Mendez Dep. at pp. 143-44. After no firearms were recovered, S/A Wight left the premises because there was no longer any basis for federal prosecution. Id.

 On June 2, 1992, a Grand Jury returned an indictment charging Howard and Joyner with two counts of criminal possession of a controlled substance in the third degree, unlawful possession of marijuana, and criminally using drug paraphernalia in the second degree. See Exhibit E to City Defendants' Notice of Motion. The indictment against Howard was subsequently dismissed because she was not afforded an opportunity to appear and testify before the Grand Jury as required by § 190.50 of the New York Criminal Procedure Law. Sameerah was never charged with any offense.

 II. DISCUSSION

 A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact and that the undisputed facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden of showing that no factual dispute rests on the party seeking summary judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Thus, in determining whether a genuine issue has been raised, the inferences to be drawn from the underlying facts revealed in the affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion. See, e.g., United States v. Diebold, 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).

 On summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Donahue, 834 F.2d at 58 (quoting Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)); see also Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994) (a court's duty at the summary judgment stage "is confined...to issue-finding; it does not extend to issue-resolution"). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). With these familiar maxims in mind, I turn to defendants' motions.

 A. THE CITY DEFENDANTS' MOTION

 
1. Counts One and Five: The Arrests

 Count One of the Complaint alleges that the Plaintiffs were arrested without probable cause in violation of the Fourth Amendment. Count Five of the Complaint alleges that Plaintiffs ...


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