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BIRTHWRIGHT v. CITY OF NEW YORK

September 8, 2005.

CLARENCE BIRTHWRIGHT and LARRY FAULKNER, Plaintiffs,
v.
THE CITY OF NEW YORK, 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, LIEUTENANT KEVIN CANTY, Defendants.



The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

MEMORANDUM OPINION & ORDER

I. BACKGROUND

A. Introduction

  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.

  C. Facts

  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).

  II. DISCUSSION

  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 ...


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