The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION & ORDER
Plaintiffs Clarence Birthwright and Larry Faulkner claim that
their residences at 143 West 129th Street, New York, New York
10027, were raided by five (5) to ten (10) police officers in
violation of their Fourth Amendment constitutional rights.
Plaintiffs have brought claims against the above-named officers
and the City of New York on the grounds that the police had no
probable cause to search plaintiffs' residences and arrest them,
and no reason to suspect wrongdoing. B. Procedural History
Clarence Birthwright and Larry Faulkner filed this action on
May 9, 2001. On January 31, 2002, the City of New York ("City" or
"City of New York") answered the complaint. Plaintiffs filed an
Amended Complaint on April 16, 2003, naming Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, Detective Jeannie Finucane, Lieutenant Kevin Cantwell,
Sergeant Tommy O'Brien, Police Officer Miguel Menard, and
Lieutenant Kevin Canty as additional defendants.
The case was transferred from Judge Batts to the undersigned on
May 22, 2003. The City of New York, Sergeant John Prendergast,
Detective Patrice Wallace, Detective John Muniz, Sergeant Brendan
Higgins, Detective Eric Layton, Sergeant Rick Caban, and
Detective Jeannie Finucane filed their Answer to the Amended
Complaint on June 11, 2003.
On December 24, 2003, the City of New York, Sergeant John
Prendergast, Detective Patrice Wallace, Detective John Muniz,
Sergeant Brendan Higgins, Detective Eric Layton, Sergeant Rick
Caban, and Detective Jeannie Finucane filed a motion for summary
judgment, which is now before the Court.
At the time of the events at issue, plaintiffs were residents
of the premises located at 143 West 129th Street, which
plaintiffs maintain is a multi-unit dwelling, and defendants
contend is a private home. (Defendant's Local Rule 56.1 Statement
("Def.'s Rule 56.1 Stmt.") ¶¶ 2, 5, 8; Plaintiff's Local Rule
56.1 Opposition Statement ("Pl.'s Rule 56.1 Opp. Stmt.") ¶ 2).
The premises at 143 West 129th Street are owned by one Violet
Jordan, plaintiff Birthwright's sister. (Def.'s Rule 56.1 Stmt.
¶¶ 1, 4). Birthwright does not pay rent and has resided at 143
West 129th Street for sixty years. (Def.'s Rule 56.1 Stmt. ¶ 7).
143 West 129th Street is by outward appearance a
brownstone-style building, but inside it is comprised of units
varying in size and type. (See Wallace Dep. at 54-55; July
Birthwright Dep. at 15). The building has four stories, comprised
of nine units, yet only one mailbox and one doorbell service the
premises. (July Birthwright Dep. at 12, 14, 17, 27). The building
has two possible entrances, one at the top of a stoop leading to
the first floor, and one underneath the stoop leading to the
basement. (Id. at 12, 14, 17, 18; Reply Decl. of Katie
O'Connor, Exh. V). The basement and first floor are comprised of
one unit each, and the second and third floors have three and
four units respectively. (July Birthwright Dep. at 15). Inside,
each unit is equipped with a lock. (Id. at 12, 14, 17). Six
units contain stoves, sinks, and refrigerators, and three units
are single room occupancy that do not have kitchen facilities.
(Id. at 10-13). Birthwright's apartment, on the first floor,
has its own bathroom, and the rest of the building shares two
other bathrooms, located in the hallways on the second and third
floors. (Id. at 15). Plaintiff Larry Faulkner resides on the
second floor. (Id. at 27). Entering the building on either the
basement or the first floor, a person finds herself at once in a room or unit, (Id. at 14,
27), and not a foyer, hallway, or staircase. There are no
separate doorbells at 143 West 129th Street, only one mailbox, no
intercom system, no name plates, and no apartment numbers
indicating multiple residency. (July Birthwright Dep. at 12, 14,
17, 27, 28; Faulkner Dep. at 22, 23). Detective Wallace testified
that upon execution of the search warrant, there were different
rooms in the building, and that some were locked, and some were
not. (Wallace Dep. at 41). On the third floor, which plaintiffs
contend has four separate units, Wallace testified that one room
had "very little in it, and another room [had] some clothing or
something laying all over the place." (Wallace Dep. at 123).
Wallace further testified that none of the rooms on the third
floor had kitchen facilities, and that it appeared that no one
resided on the third floor. Id.
Detective Wallace testified in an Affidavit in Support of
Search Warrant that one JD Bubbles was using the "single family
dwelling in premises 143 West 129 Street . . . to store and sell
. . . marijuana." (Def.'s Rule 56.1 Stmt. Ex. J). Detective
Wallace testified in his Affidavit that a confidential informant
("CI") had purchased marijuana at the subject premises from JD
Bubbles on two occasions, and observed marijuana within the
premises on numerous occasions over an 11 month period preceding
these transactions. (Id.). During both purchases, while present
on the second floor of the premises, the CI observed JD Bubbles
go to another floor and return shortly thereafter with the
marijuana. (Id.).
Additionally, Detective Wallace performed a search with the
local electric company, Consolidated Edison, in order to
ascertain the building's status as a private residence or
multi-unit dwelling. (Wallace Dep. at 19). The search turned up
one owner as well as only one resident, Violet Jordan. Id..
On June 22, 2000, based on the Affidavit in Support of Search
Warrant, Detective Wallace obtained a "no knock" search
warrant*fn1 authorizing the "search of the single family
dwelling in premises 143 West 129th Street in the County of New
York utilized by JD Bubbles and of the persons of JD
Bubbles. . . ." (Def.'s Rule 56.1 Stmt. Exh. I). The warrant was
executed on June 28, 2000. (Def.'s Rule 56.1 Stmt. ¶ 12, 15). The
search yielded, inter alia, $57,708.00, a loaded .45 caliber
handgun, a loaded .38 caliber defaced handgun, a .380 caliber
handgun, a loaded .32 caliber handgun, a precision assault rifle
with an attached clip containing 44 rounds of ammunition, drug
paraphernalia, and eighty (80) pounds of marijuana. (Id. ¶¶
19-22). $16,602.00, metal spoons, a metal cup, E-Wider rolling
papers, and a plastic bag of marijuana were recovered from
Birthwright's unit.*fn2 A bag of marijuana was recovered
from plaintiff Faulkner's unit. (Pl.'s Rule 56.1 Opp. Stmt. ¶
26). Plaintiffs were transported along with other residents Kenneth
Dickerson, Roan Bailey, and Anthony Campbell to the 28th
precinct, and subsequently placed in a holding cell together.
(Def.'s Rule 56.1 Stmt. ¶¶ 16, 27). Plaintiffs were later
transported to 100 Centre Street, where they were arraigned on
June 28, 2000. (Id. ¶ 29). Plaintiffs were charged with
criminal possession of marijuana, criminal possession of a
weapon, criminal use of drug paraphernalia, and Birthwright was
additionally charged with criminal possession of a controlled
substance. (Id. ¶¶ 30-31). According to plaintiffs, a grand
jury refused to indict them. (Pl.'s Rule 56.1 Opp. Stmt. ¶ 35).
Defendants, however, claim that all charges were dismissed.
Plaintiffs allege they were released from custody on July 13,
2000, while defendants contend plaintiffs were released July 12,
2000. (Def.'s Rule 56.1 Stmt. ¶ 36; Pl.'s Rule 56.1 Opp. Stmt. ¶
36).
A. Standard on Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment
"shall be rendered forthwith" if it is shown that "there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4
(1986). "[G]enuineness runs to whether disputed factual issues
can reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations
omitted). In order to prove that a genuine issue of material fact
exists, a plaintiff "may not rest upon the mere allegations or
denials of the pleading[s]," but must by affidavit or otherwise
"set forth specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). "Conclusory statements,
conjecture or speculation by the party resisting the motion will
not defeat summary judgment." Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable
factual inferences in favor of the non-moving party. See Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact
exists. If the evidence [presented by the non-moving party] is
merely colorable, or is not significantly probative, summary
judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d
Cir. 1998) (internal quotations and citations omitted)
(alteration in original). B. Personal Jurisdiction
Defendants maintain in their motion for summary judgment that
all claims against individual defendants Lieutenant Kevin
Cantwell, Sergeant Tommy O'Brien, Lieutenant Kevin Canty, and
Police Officer Miguel Menard ...