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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 ยงยง 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 ...

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