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BORDEAUX v. LYNCH

March 13, 1997

PELICIA BORDEAUX, Plaintiff,
v.
MICHAEL WAYNE LYNCH; ALLEN J. TOOMEY; THE CITY OF SYRACUSE, NEW YORK; THE SHERIFF OF ONONDAGA COUNTY, NEW YORK; and THE COUNTY OF ONONDAGA NEW YORK, 1 Defendants.



The opinion of the court was delivered by: POOLER

 INTRODUCTION

 In this civil rights lawsuit, plaintiff Pelicia Bordeaux claims that defendants violated her rights under the Fourth Amendment of the United States Constitution. The alleged wrongful conduct consists of searching Bordeaux at the Syracuse bus station and then arresting her. Bordeaux brought her claims of illegal search and seizure, false arrest, false imprisonment, malicious prosecution, and abuse of process pursuant to 42 U.S.C. ยง 1983. In lieu of answering the complaint, defendants Onondaga County, the Onondaga County Sheriff, and Allen J. Toomey, a former member of the Onondaga County Sheriff's Department and the Central New York Drug Enforcement Task Force, made a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. Nos. 7, 8. Defendants City of Syracuse and Michael Wayne Lynch, a member of the Syracuse Police Department and former member of the Central New York Drug Enforcement Task Force, answered the complaint and moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) and for summary judgment pursuant to Fed. R. Civ. P. 56(a). See Dkt. Nos. 11, 14, 15. The United States Attorney for the Northern District of New York, served a notice of appearance for defendants Lynch and Toomey, submitted a letter brief in support of the previously filed motions, and argued that Lynch and Toomey were entitled to qualified immunity. Dkt. Nos. 28, 29. I heard argument on the defendants' motions on February 5, 1996.

 Considering defendants' motions as motions for summary judgment, I grant summary judgment to defendants City of Syracuse, Onondaga County and the Onondaga County Sheriff. I also grant summary judgment to defendants Lynch and Toomey in their individual capacities, because their actions, even if violative of the Fourth Amendment, are protected by qualified immunity. I decline to consider any potential claims plaintiff may have against the federal government pursuant to the Federal Tort Claims Act.

 BACKGROUND

 Bordeaux and her companion Diane Sweeney arrived at the Syracuse Airport on August 10, 1989, and caught the attention of a Central New York Drug Task Force ("Task Force") informant as they were standing in the baggage claim area. Holtzberg Aff., Dkt. No. 19, Ex. A ( People v. Bordeaux, 182 A.D.2d 1095, 1095-96, 583 N.Y.S.2d 865 (4th Dep't), appeal dismissed, 80 N.Y.2d 915, 588 N.Y.S.2d 821, 602 N.E.2d 229 (1992)). Bordeaux and Sweeney departed the airport together by taxi and traveled to a local motel. 182 A.D.2d 1095 at 1096. Following up on the informant's information, Task Force officers Lynch and Toomey traveled to the motel, placed Bordeaux and Sweeney under surveillance, and observed the women check out of the motel and depart by taxi for the Syracuse bus station. Id. At the bus station, Lynch and Toomey approached the women and requested information concerning their identities and destination. Id. Bordeaux and Sweeney each produced valid New York State drivers licenses with names that corresponded to those they used to register at the motel. Id. Bordeaux and Sweeney also provided details about their travel. Id.

 The officers observed that Bordeaux's airline ticket bore the name "Smith." Id. Bordeaux explained that someone else had purchased the ticket. Id. The officers also questioned Bordeaux and Sweeney about a black piece of luggage (the "black bag"). Id. The women denied knowledge or ownership of the black bag. Id. Believing that the women were lying about their ownership of the black bag, and suspecting "that there was something wrong," the officers retrieved the black bag from the luggage compartment of the bus and instructed the driver to leave without Bordeaux and Sweeney. Id. at 1096-97. The officers escorted Bordeaux and Sweeney into a private room of the bus station and searched the black bag which contained cocaine. Id. at 1097.

 The officers arrested Bordeaux and Sweeney. Id. Bordeaux was indicted, convicted, and sentenced to concurrent terms of eighteen years to life and five to fifteen years for criminal possession of a controlled substance in the first and third degrees. *fn2" Holtzberg Aff., Dkt. No. 19, PP 6,7; Haber Aff., Dkt. No. 14, Ex. A (Pl.'s Notice of Claim) P 5. Bordeaux served two years and nine months of her term of incarceration before the New York State Appellate Division, Fourth Department, overturned her indictment in a three-to-two decision, holding that the officers lacked a "predicate for a common-law inquiry" into ownership of the black bag. Bordeaux, 182 A.D.2d at 1096.

 DISCUSSION

 I. Legal Standard

 In lieu of answering Bordeaux's complaint, defendants Onondaga County, the Onondaga County Sheriff, and Toomey moved to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 7. Defendants City of Syracuse and Lynch answered Bordeaux's complaint and then moved to dismiss pursuant to Fed. R. Civ. P. 12(c) for a judgment on the pleadings and for summary judgment pursuant to Fed. R. Civ. P. 56(a). *fn3" Dkt. No. 14. The federal government subsequently appeared on behalf of defendants Lynch and Toomey and submitted a letter brief in support of the previously submitted motions to dismiss and argued further that I should find Lynch and Toomey qualifiedly immune. Dkt. Nos. 28, 29.

 In addition, both parties submitted additional information including affidavits, the appellate decision, and testimony from the grand jury proceedings. *fn4" When considering matters outside the pleadings under both Fed. R. Civ. P. 12(c) and 12(b)(6), "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See Fed. R. Civ. P. 12(c) and 12(b)(6). Therefore, in either considering Lynch's and the City's 12(c) motion or in determining whether to convert Toomey's and the County's Rule 12(b)(6) motion to one considered under Rule 56, I must assure myself that Bordeaux "should reasonably have recognized the possibility that the motion might be converted into one for summary judgment" and must avoid a situation where the non-movant "was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) (discussing a district court's conversion of a Rule 12(b)(6) motion to a Rule 56 motion for summary judgment) (internal quotations omitted).

 Bordeaux had ample notice that this motion would be considered pursuant to Rule 56. First, Lynch and the City of Syracuse moved for summary judgment. Dkt. No. 14. Second, a letter brief submitted by the assistant United States attorney discusses a motion for summary judgment in favor of both Lynch and Toomey. Dkt. No. 29. Third, plaintiff also submitted affirmations in response to defendants' motions. See Dkt. Nos. 18, 19. Moreover, following argument on February 5, 1996, defendants submitted five additional affidavits. See Dkt. Nos. 32, 33, 35, 36, 37. Bordeaux should reasonably have recognized the possibility that the County's and Toomey's motion might be converted into one for summary judgment. Krijn, 896 F.2d at 689. Because I rely on these additional submissions, I treat defendants' motions as motions for summary judgment pursuant to Fed. R. Civ. P. 56. Grand Union Co. v. Cord Meyer Dev. Corp., 735 F.2d 714, 717 (2d Cir. 1984); Triguero v. Consol. Rail Corp., 932 F.2d 95, 97 (2d Cir. 1991).

 Summary judgment shall enter if, when viewing the evidence in the light most favorable to the nonmovant, the court determines that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A patty seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant satisfies this initial burden, then the "burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). The nonmovant must do more than show that there is "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In ...


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