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United States District Court, S.D. New York

March 9, 2004.

RAMON RODRIGUEZ, DENNES GARCIA, INDIVIDUALLY and as parents and natural guardians of CASIEL RODRIGUEZ, YUDENNIS RODRIGUEZ and MANUEL RODRIGUEZ, Plaintiffs, -against- THE CITY OF NEW YORK, NEW YORK CITY POLICE OFFICERS JOHN DOE 1-7 being employees of New York City Police Department, in their individual capacities and police officers of the City of New York, Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Plaintiffs have sued the City of New York*fn1 pursuant to section 1983 of Title 42 of the United States Code claim alleging Monell violations of their civil Page 2 rights by police officers employed by the City of New York.*fn2 Defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion is granted, and this case is dismissed.


  On December 3, 2001, the Honorable Robert Stolz, a judge of the Criminal Court of New York County, issued a "no-knock warrant," to Detective Dino Polichetti, allowing the search of 1071 St. Nicholas Avenue in the County of New York and of "J.D. Yea's" person. See City of New York's Local Civil Rule 56.1 Statement of Undisputed Facts*fn3 ("Def. 56.1") at 1-2. This warrant was Page 3 obtained based on information supplied by a registered confidential informant (CI 17917A), that "J.D. Yea" used 1071 St. Nicholas Avenue to store and sell cocaine. Additionally, the police conducted two controlled buys of narcotics from Apartment 22 at 1071 St. Nicholas Avenue. On each occasion, the bags of white powder purchased from the apartment by the confidential informant tested positive for cocaine.*fn4 See id. at 2-3.

  On December 5, 2001, police officers searched Rodriguez's apartment and recovered "one clear plastic bag containing a large rock of crack/cocaine, one clear plastic bag containing cocaine and one clear plastic bag containing 1,254 white pills of the controlled substances to wit MDMA" from Rodriguez's bedroom closet at 1071 St. Nicholas Avenue, Apartment 22. See id. A field test performed on the substance contained in one of the bags tested positive for trace amounts of cocaine. Additionally, the officers recovered ninety Remington twelve gauge shells. See id. at 4.

  When the police arrived at 1071 St. Nicholas Avenue on December 5, 2001, minor plaintiffs Casiel Rodriguez, Manuel Rodriguez and Yudennis Page 4 Rodriguez were playing in the hallway with neighbors. See id. The officers did not speak to the minor children. See id. at 5. Yudennis Rodriguez then went inside the apartment and remained inside for the first five minutes of the search, after which she waited at a neighbor's apartment with her siblings and mother, plaintiff Dennes Garcia. See id. at 5-6.

  During the execution of the search warrant, police officers informed Rodriguez that they were searching for drugs.*fn5 On December 5, 2001, Rodriguez was arrested and charged with criminal possession of controlled substances with intent to sell in violation of New York Penal Law §§ 220.16(1) and 220.06(1).

  On December 6, 2001, Rodriguez was transported to Manhattan Central Booking. At 9:00 a.m., the police paperwork was completed and forwarded to the New York State Office of Court Administration for docketing. Rodriguez was seen by a doctor and given prednisone. At 3:36 p.m., Rodriguez was arraigned. Neither Rodriguez nor his attorney reported to the judge that plaintiff was ill.*fn6 See id. at 7. Bail was set for $2,500, which Rodriguez was Page 5 unable to post on the date of his arraignment. See id. at 8.

  On December 8, 2001, bail was posted for Rodriguez, who was released from custody shortly thereafter.*fn7 Rodriguez went home without seeking medical care and did not take any medication until he saw his private physician on December 10, 2001. See id.

  On December 10, 2001, a member of the police department prepared an affidavit swearing that all property taken pursuant to the warrant was contained in Vouchers Nos. L108927 and L108928. See id. This affidavit was witnessed by the Honorable Laura A. Ward. Rodriguez appeared before Judge Ward on December 11, 2001, at which point the charges against him were dismissed upon motion of the District Attorney, New York County. At that appearance, neither Rodriguez, nor his attorney, reported to the court that plaintiffs personal property had been taken from his home without authority. See id. at 9.

  Plaintiffs' Monell claim under section 1983 alleges that the judge who issued the warrant "acquiesced" in a New York City policy of issuing search warrants that are not based on probable cause as required by the Fourth Page 6 Amendment. Plaintiffs also contend that the City of New York's police department has no protocol that protects the Constitutional rights and physical safety of parties named in a search warrant.


  Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). A fact is material when "it `might affect the outcome of the suit under the governing law.'" See id. (quoting Anderson, 477 U.S. at 248).

  The party seeking summary judgment has the burden of demonstrating that no material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). In determining whether there is a genuine issue of material fact, a court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003). Accordingly, Page 7 a court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel Characters, 310 F.3d at 286. To defeat a summary judgment motion, the non-moving party must raise a genuine issue of material fact. To do so, he "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and he "`may not rely on conclusory allegations or unsubstantiated speculation.'" Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk, 315 F.3d at 175 (quoting Anderson, 477 U.S. at 252). Further, "the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Page 8


  A. Issuance of the Warrant 1.

  Probable Cause

  Title 42 of the United States Code, section 1983, reads, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
In determining the scope of a municipality's liability under section 1983, the Supreme Court has, "conclude[d] that a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978). "To impose liability under those circumstances would be to impose it simply because the municipality hired one `bad apple.'" City of Okla. City v. Tuttle, 471 U.S. 808, 821 (1985).

  To establish a section 1983 action against a municipality, a plaintiff must prove that there is a causal link between an official municipal policy or Page 9 custom and the violation of his Constitutional rights. See Monell, 436 U.S. at 692. If a plaintiff does not meet this burden, Monell prohibits finding section 1983 liability against a municipality. See id.; see also Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).

  Plaintiffs' Monell claim alleges that the judge who issued the warrant "acquiesced" in a New York City policy of issuing search warrants that are not based on probable cause finding as required by the Fourth Amendment.*fn8 Detective Polichetti, who applied for the search warrant, stated in his affidavit that he was relying on: (1) information obtained by a registered confidential informant concerning illegal drug activity in Rodriguez's apartment; and (2) drug buys the informant made with pre-recorded United States currency.

  The Second Circuit has held that "[i]n determining what constitutes probable cause to support a search warrant when the warrant is based upon information obtained through the use of a confidential informant, courts assess the information by examining the `totality of the circumstances' bearing upon its reliability." United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993) (quoting Page 10 Illinois v. Gates, 462 U.S. 213, 230-31 (1983)); see also Martinez v. Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (holding that probable cause based on a confidential informant is to be determined by a "totality of the circumstances approach"); United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993) (holding that information obtained by an informant is sufficiently reliable to support a finding of probable cause if the informant has previously given reliable information or the information is independently corroborated). In Smith, the court issued a search warrant based solely upon the affidavit of an officer which, in turn, was based on information obtained by a confidential informant and purchases of narcotics by that confidential informant. See id. at 1013. Relying on Gates, the court found that probable cause existed to issue the search warrant. See id. at 1012-15. "It is clear from Gates that reliance on a confidential informant is permissible in an affidavit submitted in support of a request for a search warrant." Id. at 1013.

  Thus, Rodriguez's claim that his Fourth Amendment rights were violated lacks merit because probable cause existed to support the issuance of the search warrant. Given the existence of probable cause, there can be no Monell claim based on the issuance of the search warrant.

  2. Judge's Authority as a Policymaker

  In the alternative, plaintiffs contend that whether a judge is a Page 11 policymaker under Monell is a question of fact. In determining whether or not an official has "final policymaking authority," the court must look to state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); see also Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986). "There can be no justification for giving a jury the discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself." Praprotnik, 485 U.S. at 126.

  Although the Second Circuit has not addressed the policymaking authority of judges, other circuits have determined that municipal judges do not act as policymakers and therefore a municipality cannot be liable under Monell for a section 1983 claim based solely on the actions of its judges. See Ledbetter v. City of Topeka, Kansas, 318 F.3d 1183, 1190 (10th Cir. 2003) (finding no municipal liability under Monell when a judge's clerk issued warrants the judge himself did not personally review using the judge's rubber stamp because it was not done under the auspices of the city and could not be interpreted as promulgating city policy); Eggar v. City of Livingston, 40 F.3d 312, 316 (9th Cir. 1994) (holding that judge's failure to inform indigent defendants of their right to counsel did not amount to municipal policymaking); Woods v. City of Michigan City, 940 F.2d 275, 279 (7th Cir. 1991) (holding that judge was acting as part of state judicial system but not as Page 12 an official policymaker); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir. 1985) (finding that city not liable for judge's error merely because he is a judge). The analysis of these cases is sound and persuasive.

  Furthermore, plaintiffs allege that the City is liable under Monell for Judge Stolz's actions. Judge Stolz, however, is an employee of the State, not the City. Thus, even if the judge's actions had amounted to that of a policymaker, the City would not be liable under Monell. See Woods, 940 F.2d at 279.

  B. Physical Safety

  As discussed earlier, in order to prevail in a section 1983 action, a plaintiff must prove a causal link between an official municipal policy or custom and a violation of his Constitutional rights. See Monell, 436 U.S. at 692. A plaintiff cannot prove causation through municipal inaction alone. See Batista, 702 F.2d at 400. At a minimum, a plaintiff must prove an affirmative link between the municipal policy or custom and the alleged constitutional violation. See Tuttle, 471 U.S. at 823. Therefore, plaintiffs' allegation of municipal inaction — that the City has not established a government protocol ensuring the Constitutional rights and physical safety of named parties in a search warrant — cannot support a Monell claim. Page 13


  For the foregoing reasons, the City's motion for summary judgment is granted. Because plaintiffs' federal claims have been dismissed, this Court declines to exercise jurisdiction over plaintiffs' state law claims pursuant to Title 28 of the United States Code section 1367(c)(3). The Clerk of the Court is directed to close this case and this motion.


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