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Nelson v. City of Rochester

July 2, 2007


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiffs, Florine and Walter Nelson, filed the complaint in this action in New York State Supreme Court, Monroe County, in September 2006. The complaint asserts claims under 42 U.S.C. §§ 1983, 1985 and 1988, as well as under New York statutory and common law, against the City of Rochester ("City") and various individual city officials and employees, based on defendants' alleged abuse of process in connection with a warrant to search plaintiffs' residence on Clifton Street in Rochester.

Defendants removed the action to this Court in December 2006, based on federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441(a). Plaintiffs move to remand the action to state court under 28 U.S.C. § 1441(c).


The Rochester Municipal Code requires property owners to obtain a certificate of occupancy ("C/O") for certain types of structures, stating that the structure conforms to the Rochester Building Code, Zoning Code, and similar provisions. The Municipal Code also provides that buildings for which a C/O is required are subject to inspection to ensure compliance with all applicable codes. Rochester Property Code § 90-16, available at se_Frame_Pg42.*fn1

In June 2005, defendant Rodric Cox-Cooper, the Director of Rochester's Neighborhood Empowerment Team ("NET"), applied for a warrant to search plaintiffs' residence (which they rent from the owner, Eula Dozier), stating that a search was required to determine if the building was in conformity with applicable codes. Complaint ¶¶ 31, 54. Rochester City Court Judge Ann Pfeiffer granted the application on June 14. Complaint ¶ 62.

On June 21, 2005, two NET officers and three Rochester police officers went to plaintiff's residence to execute the warrant. Plaintiffs refused to allow them to enter the house.

Plaintiffs came out and spoke to the officers outside the building, and the officers eventually left without executing the warrant. Complaint ¶¶ 69-73, 85.

Defendant Amy Hartman Nichols, an attorney for the City, sent plaintiffs a letter dated July 29, 2005, stating that a "motion for contempt order" would be filed against them unless plaintiffs submitted a letter stating that they lived at 187 Clifton Street and that they consented to allow the City to inspect the property. Complaint ¶¶ 89, 90. By letter dated August 3, 2005, plaintiffs' attorney responded to Hartman Nichols, stating that plaintiffs "cannot be held in contempt of any order entered in a proceeding in which they were not joined as parties or permitted to appear." Complaint ¶ 95.

The City filed a contempt motion on October 20, 2005, seeking to hold plaintiffs in contempt of the previously issued search warrant. Rochester City Court Judge Melchor Castro orally dismissed the motion on December 23, 2005. Complaint ¶¶ 97, 100.

Plaintiffs commenced this action the following September. The complaint asserts thirteen causes of action, including § 1983 claims alleging violations of plaintiffs' Fourth Amendment and equal protection rights, a § 1983 claim for abuse of process, a civil rights conspiracy claim under § 1985, and a claim for attorney's fees under § 1988. Plaintiffs also alleged analogous claims under the New York State Constitution, as well as claims alleging violations of the New York Criminal Procedure Law and common law. Plaintiffs seek declaratory and injunctive relief, as well as compensatory damages.


Defendants removed this action to this Court pursuant to 28 U.S.C. § 1441(a), which provides that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Plaintiffs have moved to remand under § 1441(c), which provides that "[w]henever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates."

Plaintiffs contend that remand is appropriate under ยง 1441(c) because New York law predominates in this action. A central issue in this case, plaintiffs assert, is whether New York law authorizes so-called "administrative" search warrants, i.e., warrants to search for the purpose of determining compliance with property code requirements. According to plaintiffs, the City has enacted a local law to permit such warrants, but plaintiffs contend that in the absence of a delegation of authority from the state, the City is not empowered to enact such a law. Plaintiffs also allege that even if administrative search warrants are permissible, they must comply with the requirements ...

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