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CHANDIE v. WHELAN

September 3, 1998

JEAN CHANDIE, Administratrix of the Estate of DEXTER CHANDIE, Deceased, Plaintiff,
v.
JOHN WHELAN and THE CITY OF LONG BEACH, Defendants.



The opinion of the court was delivered by: GERSHON

MEMORANDUM AND ORDER

 GERSHON, United States District Judge:

 This action is brought pursuant to 42 U.S.C. §§ 1983, 1986 and 1988. The plaintiff, Jean Chandie, alleges that her son, Dexter Chandie, was deprived of his civil rights by the unwarranted application of deadly force when he was fatally shot in June 1993 by defendant John Whelan, a police officer employed by defendant City of Long Beach. The defendants now move for summary judgment. The plaintiff opposes the motion and has also moved for leave to join additional parties as defendants and to raise new claims under 42 U.S.C. §§ 1981, 1985 and 1986.

 FACTS

 The following recitation of facts is based upon the deposition testimony of defendant John Whelan and non-party witness Harold Michaels and upon exhibits submitted to the court by the defendants. The plaintiff has responded to the recitation of the facts contained in the defendants' moving papers by declaring that "most of these facts are not believed by plaintiff to be true." Pltf.'s Mem. at 2. However, instead of asserting what exactly she believes to be the true course of events, the plaintiff does two things: 1) directs the court's attention to inconsistencies in the factual record submitted to the court by the defendants and 2) speculates that the facts, even as set forth by the defendants, support the existence of a conspiracy to cover up the true facts surrounding the death of Dexter Chandie. As set forth below, the plaintiff's efforts are unavailing; the inconsistencies are immaterial and the speculation as to an alternate course of events is unsupported.

 The plaintiff, Jean Chandie, is the mother of Dexter Chandie and the administratrix of his estate. At the time of the incident that gives rise to this action defendant John Whelan was a police officer for defendant City of Long Beach ("the City") and also held a part-time job as a security manager at the Foodtown supermarket in Oceanside, New York. Whelan was hired by the City in 1986 and was hired for his part-time position at Foodtown in approximately 1991.

 On the evening of June 7, 1993 Whelan was working at Foodtown with Harold Michaels, the Assistant Store Manager. As an off-duty police officer, Whelan was armed with a handgun, issued to him by the City, which he carried that evening in a shoulder holster concealed under his shirt. Whelan and Michael's final duty of the evening was to lock the store at closing time. Having done this, they proceeded to their respective automobiles, which were parked in the store's lot. Upon reaching his automobile, Michaels observed that one of its rear tires had been slashed. He summoned Whelan, and the two men proceeded to change the slashed tire.

 While they were working on the tire, two men, later identified as Dexter Chandie and Collin Victor, approached Whelan and Michaels. Chandie and Victor drew handguns and ordered Whelan and Michaels to stand and walk back to the front door of the Foodtown store. Upon being ordered to do so, Michaels unlocked the front door. He and Whelan were then taken at gunpoint to the rear of the store, where the bookkeeping office was located. Michaels did not have a key for the locked door of the bookkeeping office, but he informed Chandie and Victor that he could open the door with a screwdriver. Michaels, accompanied by Dexter Chandie, went to obtain a screwdriver from the store's hardware department, while Victor ordered Whelan to lie flat on the floor of the hallway outside of the bookkeeping office. After returning with a screwdriver, Michaels opened the door to the bookkeeping office. Whelan was then ordered to lie flat on the floor of the bookkeeping office while Michaels assisted Victor with opening various safes inside the office.

 Shortly thereafter, either Whelan or Michaels stated that the Foodtown store was cleaned each evening by two porters, who were locked into the store at closing time. Chandie left the bookkeeping room to find the two porters, while Victor began loading the contents of the safes into a bag, while keeping Whelan and Michaels at gunpoint. Chandie returned with the two porters, Andres Sorto and Immer Ortega, who were ordered to sit on the floor of the hallway outside of the bookkeeping office. Chandie then handed Whalen a roll of duct tape and ordered him to go into the hallway and bind the two porters. Whalen performed this task while Chandie stood in the doorway of the bookkeeping office, holding a gun pointed at him. Victor continued loading the contents of the safes while Michaels was made to lie on the floor of the office.

 At some point during this sequence of events, Dexter Chandie asked Michaels if there was some place in the store where Michaels, Whelan, Sorto and Ortega could be locked up once he and Victor were prepared to leave the store. Michaels testified at his deposition that he replied that there was not, to which Chandie responded to the effect that that meant "trouble for you guys." Michaels Dep. at 99. Whelan also testified this exchange took place, and quotes Chandie's response as, "That is too bad, too bad guys, that is really too bad." Whelan Dep. at 151. Whelan also testified that, at some point while unloading the contents of the safes, Victor remarked, "I don't see one twenty, not one fucking twenty. I better see some big bills fast or something is going to happen." Id. at 104. At this, Whelan testified, Dexter Chandie remarked, "I am getting trigger happy here, I am really getting trigger happy." Id. Michaels whose deposition took place after Whelan's, was not asked whether or not he recalled these comments.

 As he was binding the porters with duct tape, Whelan noticed that Dexter Chandie had turned to look inside the bookkeeping office. At that instant, Whelan reached for the gun in the shoulder holster underneath his shirt, drew the gun at Chandie and said, "Police, don't move!" Whelan Dep. at 116. Chandie responded by moving toward Whelan and simultaneously drawing his gun. At this, Whelan fired a number of shots at Chandie, who was propelled backwards into the bookkeeping office by the impact of the bullets. Whelan himself then moved into the office and immediately encountered Victor, who was moving toward him with his gun raised. Whelan then fired a number of shots at Victor, who fell to the floor.

 Whelan directed Michaels to telephone the Nassau County Police Department, within whose jurisdiction the Foodtown store was located, who arrived at the Foodtown store, along with ambulances, shortly thereafter. Dexter Chandie and Victor were both pronounced dead at the scene shortly after 12:30 a.m. on June 8, 1993. Jean Chandie identified the body of her son during the afternoon of that day. The autopsy performed on Dexter Chandie reported that he had been hit by three bullets, all of which penetrated his chest. The autopsy report concluded that Chandie had died as a result of "Gunshot Wounds of Chest with Perforation of Lungs and Aorta." Defts.' Ex. E at 10.

 Shortly after the arrival of the Nassau County Police, Whelan was taken to a hospital emergency room to be treated for trauma. Whelan was interviewed, in the presence of a representative of his union, by Nassau County detectives on June 8, 1993. Written statements were taken from Michaels, Sorto and Ortega at the scene by Nassau County police.

 The shooting of Dexter Chandie and Collin Victor was the subject of two investigations. First, an investigation was conducted by the Major Offense Bureau of the Office of the District Attorney of Nassau County. That investigation, as stated in a June 21, 1993 letter from Denis Dillon, the District Attorney of Nassau County, to the Commissioner of the City of Long Beach Police Department, reached the following conclusion:

 
Our review of the incident shows that Officer Whelan was justified in firing the shots and accordingly no Grand Jury presentment is warranted. In addition, our investigation shows that Officer Whelan is to be commended for his conduct. ...

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