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GARCIA v. NEW YORK STATE POLICE INVESTIGATOR

March 29, 2001

COLENE M. GARCIA, PLAINTIFF,
V.
NEW YORK STATE POLICE INVESTIGATOR LANCE AGUIAR AND NEW YORK STATE POLICE TROOPER BARRY FRIEDMAN, DEFENDANTS.



The opinion of the court was delivered by: McAVOY, District Judge.

  MEMORANDUM — DECISION & ORDER

Plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that a stop and search by Defendants New York State Police Investigator Lance Aguiar and New York State Police Trooper Barry Friedman violated her First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Presently before the Court is Defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.

I. BACKGROUND*fn1

On December 6, 1998, at approximately 2:15 a.m., Plaintiff Colene Garcia was driving a vehicle also occupied by three males. Defendants Aguiar and Friedman were driving Westbound in their trooper vehicle on State Route 299 in the Town of Lloyd when they observed a vehicle traveling Eastbound at an apparently high rate of speed. Trooper Friedman operated the radar device and determined Plaintiff to be driving 66 miles per hour in a 55 mile per hour zone. The Troopers then proceeded to stop Plaintiffs vehicle for a violation of the New York State Vehicle & Traffic Law.

Upon approaching the vehicle, the officers detected the scent of burned marihuana coming from inside the vehicle. Friedman inquired who had the marihuana. Plaintiff denied having any marihuana. None of the other passengers responded to Friedman. After obtaining Plaintiffs driver's license*fn2 and the vehicle registration,*fn3 Friedman asked Plaintiff to exit the vehicle. Friedman escorted Plaintiff to the front of the police car and conducted sobriety tests, including a breathalyzer test. Friedman then advised Plaintiff that he was going to search her.

Friedman frisked Plaintiffs legs by "patt[ing] them down with both hands on one leg and then c[oming] up and . . . put[ting] his hands on the inner thigh up towards the groin area, cupp[ing] it, and then c[oming] down the other side." Pl. Dep., at 63. Friedman then "came up and put his hand between [Plaintiffs] breasts." Pl. Dep. at 68. More specifically, Friedman ran the side of his hand, with the little finger touching Plaintiff, perpendicularly down the middle of Plaintiffs breasts. Next, Friedman "lifted one breast up and the other one up and then he continued around the back." Pl. Dep. at 74. According to Plaintiff, Friedman "cupped the bottom half [of her breast], lifted it up went to the other one, lifted the other one. He didn't like grab my whole breast." Pl. Dep. at 75. Plaintiff further testified that this was a fairly quick process and Friedman "wasn't being perverted." Pl. Dep. at 76. Friedman then patted down Plaintiffs rear pockets. At that point the search ended.

After Friedman concluded searching Plaintiff, Aguiar came over with a marihuana pipe he had found in Plaintiffs purse*fn4 and inquired who owned the pipe. Plaintiff responded that it was hers. The troopers found marihuana residue in the pipe. Plaintiff was issued a speeding ticket and an appearance ticket for the unlawful possession of marihuana. Plaintiff ultimately pleaded guilty to a violation of N.Y. VEH. & TRAFFIC LAW § 1110(a) in satisfaction of the charges against her.

Plaintiff then commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that she was unlawfully and/or improperly restrained, searched, and imprisoned by Defendants. Compl. ¶ 15. Presently before the Court is Defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety.

II. DISCUSSION

A. Summary Judgment Standard

In addressing Defendants' motion, the Court will apply the familiar standard for summary judgment, which need not be restated here. Roman v. Cornell Univ., 53 F. Supp.2d 223, 232-33 (N.D.N.Y. 1999); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551 (N.D.N.Y. 1999); Riley v. Town of Bethlehem, 44 F. Supp.2d 451, 458 (N.D.N.Y. 1999).

B. Plaintiff's Opposition Papers

The Court rejected Plaintiffs opposition papers because they failed to comply with N.D.N.Y.L.R. 7.1. On or about March 19, 2001, Plaintiff completed new opposition papers and served them on Defendants along with a request for an extension of time within which to file the opposition papers. Defendants then sent the opposition papers and the request for an extension of time to the Court for filing.

The Court will now address Plaintiff's request for an extension of time. First, Plaintiff failed to comply with the requirements of FED. R. CIV. P. 6(b) regarding seeking enlargements of time. Once the period of time for performing an act has expired, a party must make a motion for an enlargement of time. FED. R. CIV. P. 6(b)(2). Under N.D.N.Y.L.R. 7.1(b)(1), Plaintiff was required to file proper opposition papers within twenty-one days after having been served with Defendants' motion.*fn5 Plaintiff met this deadline, but with papers that did not comply with the local rules. These papers were, therefore, rejected. N.D.N.Y.L.R. 7.1(b)(3). ...


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