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
OPINION AND ORDER
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
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
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.
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
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
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
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.
II. LEGAL STANDARD
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,
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).
A. Issuance of the Warrant 1.
Title 42 of the United States Code, section 1983, reads, in relevant
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
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
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
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
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
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.