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Merritt v. Dunlap

December 30, 2005


The opinion of the court was delivered by: Howard G. Munson Senior United States District Judge


Plaintiff, Christina M. Merritt, brings this Bivens-styled action against seven law enforcement agents for alleged violations of her constitutional rights.*fn1 Plaintiff sets forth claims for:

(1) unlawful seizure/false arrest pursuant to the Fourth Amendment to the United States Constitution, see Dkt. No. 1, Compl. at ¶ 42; and (2) malicious prosecution pursuant to the Fourth Amendment, see id. at ¶ 46. Plaintiff alleges, inter alia, that defendants, Special Agent Terrance E. Dunlap, Detective James Lyman, Detective Benedict J. Ravida, Detective James DiCaprio, Senior Investigator Lennie Daniels, Detective Greg Sager, and Special Agent Kluck arrested her without probable cause and with malice and/or reckless disregard for her rights by causing and/or continuing a malicious prosecution against her. Plaintiff also sets forth claims for false arrest and malicious prosecution under the Federal Tort Claims Act ("FTCA") against the United States of America. See id. at ¶¶ 49-51. Defendants move for dismissal or summary judgment of plaintiff's claims asserting that they acted within the scope of their proper authority, had probable cause to arrest plaintiff, and enjoy qualified immunity. Similarly, defendants move for dismissal or summary judgment of plaintiff's FTCA claims asserting that she has failed to state a prima facie claim for either false arrest or malicious prosecution because the defendants had probable cause to effect her arrest. Plaintiff opposes defendants' motion. For the reasons set forth below, defendants' motion for summary judgment is GRANTED.


In September of 1999, based on information provided to them by a confidential source, the Catskill Police Department and the Capital District Drug Enforcement Task Force ("CDDETF") (collectively "Task Force") began an investigation into the distribution of narcotics and crack cocaine by Michael and Jeffrey Chowka. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶

1. Sager is a member of the Catskill Police Department and the other remaining individual defendants are members of the CDDETF. See Dkt. No. 27, Defs.' Mem. of Law at 2. With information obtained during the investigation, the Task Force sought arrest warrants for both Michael and Jeffrey Chowka as well as search warrants for their respective residences. On September 29, 1999, the Honorable Ralph W. Smith, United States Magistrate Judge issued arrest and search warrants with respect to both Michael and Jeffrey Chowka. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 2. At approximately 7:00 A.M. on September 30, 1999, while maintaining surveillance of Jeffrey Chowka's residence, Lyman and Ravida observed Jeffrey Chowka and a white female, later identified as plaintiff, leave Jeffrey Chowka's residence at RR 1 Box 34, Bobs Lane Road, Athens, New York. See id. at ¶ 3. Lyman radioed Jeffrey Chowka's movement to Dunlap, DiCaprio, and Sager who followed Jeffrey Chowka and plaintiff to a convenience store where they apprehended him. See id. at ¶ 4. The Task Force advised Jeffrey Chowka that a United States Magistrate had issued a Federal Arrest Warrant for him and a Federal Search Warrant for his residence at RR1 Box 34, Bobs Lane Road, Athens, New York. See id. at ¶ 5.

The Task Force escorted Jeffrey Chowka, accompanied by plaintiff, back to his residence, where he was read his Miranda rights, and the Task Force explained the import of the Federal Search Warrant to all those present at the residence, including plaintiff, Jeffrey Chowka, Jeffrey Chowka's mother, Joan Chowka, and Joan Chowka's boyfriend, Charles Ribokas, who was defendants' confidential source. See id. at ¶ 6; Dkt. No. 27, Defs.' Mem. of Law, Ex. 1, at 10. Thereafter, while Dunlap and Sager sequestered plaintiff, Jeffrey Chowka, Joan Chowka and Ribokas in the kitchen, Lyman, Ravida and DiCaprio conducted a search of the premises where they discovered crack cocaine in Jeffrey Chowka's upstairs bedroom in a top dresser-drawer. See id. at ¶ 7. Defendants also submit that the top drawer contained several articles of female specific clothing/undergarments, but plaintiff contests the assertion. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 7; Dkt. No. 31, Pl.'s Statement of Material Facts at ¶ 7. DiCaprio and Ravida also noted several other articles of female clothing and personal effects throughout Jeffrey Chowka's room, including shoes, jewelry, lingerie, feminine T-shirts, perfume and bracelets. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 8. Based on these observations, the Task Force inferred that a female had stayed in Jeffrey Chowka's bedroom; the parties; however, dispute how often plaintiff spent the night. See id.; Dkt.No. 31, Pl.'s Statement of Material Facts at ¶¶ 8, 9 ("ongoing" versus "intermittent" or "occasional" basis). Plaintiff concedes that she stayed overnight at Jeffrey Chowka's residence on occasion, but she disputes that her occasional overnight visits amount to sharing Jeffrey Chowka's bedroom. See Dkt. No. 29, Merritt Aff. at ¶ 4. She also concedes that she kept certain personal belongings at Jeffrey Chowka's residence; however, she disputes defendants' contention that she kept any belongings in the top drawer of the dresser located in Jeffrey Chowka's upstairs bedroom. She instead maintains that she kept her belongings in the two lower drawers of Jeffrey Chowka's dresser in his upstairs bedroom while she kept the remainder of her belongings in a closet.*fn2 See id. at ¶ 5. Task Force members also seized several other items related to Michael and Jeffrey Chowka's drug trafficking from Jeffrey Chowka's upstairs bedroom. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 10.

Just prior to her arrest, Task Force members began to interrogate plaintiff, and Jeff Chowka admonished her to keep quiet. Thereafter, plaintiff refused to answer any further questions posed to her by Task Force members. See Dkt. No. 29, Merritt Aff. at ¶ 6; Dkt. No. 30, Pl.'s Mem. of Law at 4. Contemporaneously, the Task Force contacted the Assistant United States Attorney ("AUSA") assigned to the Chowka case, and informed him that they found cocaine and crack cocaine in a top dresser-drawer containing numerous female-specific clothing items. The AUSA then "authorized" the arrest of plaintiff, and the Task Force placed her into custody and transported her to the United States Courthouse in Albany for pre-trial services processing. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 11. Pursuant to Rule 5 of the Federal Rules of Criminal Procedure pertaining to a warrantless arrest, on September 30, 1999, Magistrate Judge Smith witnessed Dunlap sign the criminal complaint against plaintiff. See Dkt. No. 28, Defs.' Statement of Material Facts at ¶ 12. The United States filed a criminal complaint against plaintiff charging her with possession with intent to distribute crack cocaine. See Dkt. No. 27, Ex. 7, Crim. Compl. After her arrest, plaintiff remained in custody for four days at which time her attorney secured her release. See Dkt. No. 29, Merritt Aff. at ¶ 6. On November 19, 1999, the Government dismissed all of the charges it filed against plaintiff due to insufficient evidence. See id. at ¶ 8; Ex. B.

After her release, plaintiff obtained the contents of the top dresser drawer from which the defendants claimed to have removed a quantity of cocaine, and she transferred the contents to her attorney. See id. at ¶ 7. A photograph of the contents reveals, inter alia, the following: two screwdrivers, a Norelco electric razor, a bottle of calcium tablets, Mineral Ice rub, glasses, three rolls of photographic film, skin lotion, a wrist watch, and adhesive tape. Noticeably absent from the photograph are any items of female clothing or female effects.*fn3


I. Motion to Dismiss Standard

When matters outside the pleadings are presented in connection with a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must, with the exception of certain narrowly-defined materials, either exclude the additional material and decide the motion on the complaint alone, or convert the motion to one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and afford all parties a "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED.R.CIV. P. 12(b); see also Friedl v. City of New York, 210 F. 3d 79, 83 (2d Cir. 2000). The Second Circuit strictly enforces "the conversion requirement of Rule 12(b)(6) where there is a legitimate possibility that the district court relied on inappropriate material in granting the motion." Amaker v. Weiner, 179 F. 3d 48, 50 (2d Cir. 1999). The conversion requirement's purpose is to ensure that "courts will refrain from engaging in fact-finding when considering a motion to dismiss, and also that plaintiffs are given a fair chance to contest defendants' evidentiary assertions." Amaker, 179 F. 3d at 50.

It appears to the court that defendants drafted their motion as one seeking summary judgment and that plaintiff tailored her opposition to defeat a motion for summary judgment. Accordingly, the court will analyze defendants' motion as one seeking summary judgment.

II. Summary Judgment Standard

The standard for summary judgment is familiar and well-settled. Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L. Ed. 2d 265 (1991) (quoting FED.R.CIV.P. 1). A court may grant a motion for summary judgment when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See Thompson, 896 at 720; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). The role of the court on a motion for summary judgment is not to try issues of fact but only to determine whether there are issues of fact to be tried. See, e.g., Anderson, 477 U.S. at 255, 106 S.Ct. at 2513; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir.1987). The drawing of inferences and the assessment of the credibility of the witnesses remain within the province of the finders of fact. To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some ...

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