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March 28, 1998

JOHN R. DETTELIS, Plaintiff, -vs- THE CITY OF BUFFALO and JAMES GROEBE, Individually and in his capacity as an Investigator for the New York State Department of Environmental Conservation (Region 9), Defendants.

The opinion of the court was delivered by: CURTIN


 CURTIN, District Judge


 On May 20, 1997, the court met with the parties, and plaintiff was given permission to amend his complaint (Item 29). Thereafter, plaintiff filed his amended complaint (Item 31), defendant City of Buffalo ("City") filed its amended answer (Item 32), and defendant James Groebe ("Groebe") filed his amended answer (Item 35). On August 13, 1997, the parties stipulated to dismiss with prejudice defendant State of New York (Item 37).

 Before the court is defendant Groebe's renewed motion for summary judgment (Item 36, renewing Items 17-18) and defendant City's motion for summary judgment (Item 38). In opposition, plaintiff filed a reply affidavit and numerous exhibits (Item 40), as well as a memorandum of law (Item 48). The City filed a reply affidavit and memorandum of law (Item 44), and Groebe filed a reply memorandum of law (Item 49).

 On January 16, 1998, the parties appeared for oral argument. When the court asked plaintiff's counsel whether or not he had intentionally or inadvertently dropped the City of Buffalo police officers who searched plaintiff from his amended complaint (Item 31), he replied that he intended to drop them.

 After oral argument, plaintiff submitted a post-argument memorandum of law (Item 51), and the City responded with a letter in response (Item 52).


 Plaintiff John Dettelis brings this action against defendants for violations of his constitutional rights under 42 U.S.C. § 1983 and for malicious prosecution against defendant Groebe (Item 31). Specifically, plaintiff contends that on July 21, 1994, *fn1" defendant Groebe wrongfully arrested him, and defendants Groebe and the City wrongfully conducted a strip-search and a body-cavity search without probable cause, in violation of his constitutional rights. Id. Plaintiff is seeking $ 10 million in damages, as well as costs and attorney's fees, as provided by 42 U.S.C. § 1988.

 Groebe is an investigator for the New York State Department of Environmental Conservation. In early 1994, he was conducting an investigation into illegal dumping, open burning, and other violations of New York Environmental Conservation Law in the City of Buffalo. In the course of his investigation, Groebe interviewed plaintiff to determine whether plaintiff had illegally possessed and disposed of hazardous wastes at certain sites on Hertel Avenue.

 On July 5, 1994, Groebe filed a misdemeanor complaint in Buffalo City Court against plaintiff charging him with five separate violations of New York State Environmental Conservation Law and Penal Law for his actions between November 11 and November 18, 1993 (Item 17, Exh. D). On July 12, 1994, Buffalo City Court Judge Shirley Troutman issued a warrant for plaintiff's arrest based on the misdemeanor complaint (Id., Exh. B, C). In applying for the warrant, Groebe submitted seven affidavits from individuals with personal knowledge as to Dettelis's actions in addition to the misdemeanor complaint (Item 49, Exh. C1-C7).

 On July 21, 1994, plaintiff voluntarily went to Groebe's office to discuss his involvement in illegal dumping of hazardous waste at certain Hertel Avenue sites (Item 31, P 17). Plaintiff was implicated in this investigation because during his employment with an estate liquidation business a small fire started in a barrel in the backyard of a house where he was working. Plaintiff claims that he was inside the house when the fire started and that once he learned of the fire he tried to dowse it with a garden hose. By the time the fire department arrived, the fire had been squelched. Among other things, defendant Groebe was investigating the possible connection of certain chemicals to this fire (Id. at 17-18).

 The events that give rise to this controversy occurred after Groebe arrested plaintiff on July 21, 1994. After plaintiff was brought to the Buffalo Police Department ("BPD") Central Booking Unit, plaintiff was escorted upstairs to the cellblock. After waiting in a hallway for a short while, he was brought into a room where two police officers were waiting. Groebe accompanied plaintiff because BPD Policy requires that the arresting officer be present while the arrestee is searched. According to plaintiff, one of the two officers, Anthony Sisi, told plaintiff to strip naked. Plaintiff alleges that he was then instructed to squat and cough, and that the officers pinned plaintiff to the wall and a full body-cavity search occurred (Item 31, PP 23-25).

 In contrast, Officer Sisi testified that he did not conduct a strip-search nor a body-cavity search (Item 40, Exh. D, at 27-29). *fn2" He stated that he asked Dettelis to strip down to his underwear, and that after patting him down, he determined that there was no need for a strip-search (Id. at 27). Furthermore, when plaintiff deposed the other three police officers on duty that day (Mulderig, Rosensie, and Redmond), none recalled the booking or search of plaintiff (Item 40, Exh. J; Item 38, Exh. I).

 Plaintiff contends that before, during, and after the search, Groebe and the two officers laughed at plaintiff and subjected him to derision, humiliation, ridicule, and embarrassment (Item 31, P 25). At his deposition, plaintiff claimed that during the search, Groebe told him "take it like a man; it'll go quick and easy." (Item 17, Exh. I, at 7, 10). In contrast, Groebe denies saying this and states that during the search he turned his head and looked at the wall after the officer said "drop your pants and lean against the wall." (Item 17, Exh. J, at 130). Groebe then left BPD Central Booking after the search was over.

 Plaintiff asserts that it is unconstitutional to conduct strip- and/or body-cavity searches of arrestees charged with misdemeanor violations when there is no reasonable suspicion that weapons or other contraband will be found (Item 31, P 27). He contends that other misdemeanor arrestees were subjected to illegal strip- and body-cavity searches. He alleges that the City failed to investigate these illegal searches and that they had become customary, in violation of written policy. Plaintiff maintains that this customary policy resulted in deliberate indifference to the right of detainees to be free from unreasonable searches (Id., P 36). He asserts that, as a result of defendants' acts and/or omissions, he has suffered severe emotional distress, anxiety and depression. He has become emotionally and socially withdrawn, suffered appetite loss, and has suffered sleep disorders.

 After the events described above, processing was completed, and plaintiff was placed in a cell for a few hours before appearing in City Court on the charges. At his appearance, the court appointed an attorney, set a date for a further hearing, and released plaintiff on his own recognizance (Item 22, 9/13/97 deposition at 79-80).

 On October 18, 1994, plaintiff pleaded guilty before City Court Judge Margaret Murphy to violating Environmental Conservation Law § 71-4001 and 6 New York Code Rules and Regulations ("NYCRR") § 360-1.5. Judge Murphy fined plaintiff $ 50 in satisfaction of the charges against him.

 Plaintiff argues that he only pleaded guilty to illegally burning trash in a barrel at 1955 Hertel Avenue, and that this count is wholly distinguishable from the counts that he had illegally disposed of pesticides at 525 Hertel Avenue, all of which were dismissed when he entered his guilty plea (Item 31, PP 40-45). Plaintiff also argues that defendant had no probable cause to arrest him for the charges that were dismissed when he entered his guilty plea and that Groebe is guilty of malicious prosecution (Id., P 49).

 In contrast, Groebe argues that he had probable cause for the arrest as evidenced by the warrant based on a misdemeanor complaint and seven affidavits from people with personal knowledge of what occurred. Groebe argues that since plaintiff was convicted of one of the underlying ...

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