The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs Robert L. and Bonnie S. Krug commenced this action pro se on June 4, 2004 asserting thirty-five (35) causes of action contending that their rights secured by the United States Constitution were violated. The claims arise from circumstances surrounding Plaintiff Robert L. Krug's arrest, prosecution, and conviction for attempted armed robbery. See generally Compl. [dkt. # 1]. Plaintiffs amended their Complaint on July 28, 2004 to include additional defendants which increased the number of causes of action to forty-eight (48). See 1st Am. Compl. [dkt. # 4]. On April 11, 2005, after obtaining leave, Plaintiffs filed a second Amended Complaint. The second Amended Complaint, which the Court deems to have superseded the first Amended Complaint, does not separate the claims into independent causes of action but rather generally asserts violations of the United States Constitution, the Americans with Disabilities Act, and New York State law. See 2nd Am. Compl. [dkt. # 40] ("Am. Compl."). Plaintiffs seek declaratory, monetary, and injunctive relief. Id. pp. 23-25.
In January, February, and March 2006, Defendants filed motions to dismiss or for summary judgment. See Motions by: (1) the City of Troy, New York and all individual defendants employed by the City of Troy ("the City defendants") [see dkt. # 66]; the County of Rensselaer [see dkt. # 67]; and (3) the Defendant Chirstopher Cieplik ("Cieplik") [see dkt. # 77] . On April 6, 2006, Magistrate Judge Homer granted a stay of discovery pending resolution of the outstanding motions. See 4/26/06 Order [dkt. # 87]. Because the pending motions relied on documents outside the pleadings,*fn1 the Court treated them as motions for summary judgment. On September 8, 2006, the Court denied with leave to renew Defendants' motions because Defendants failed to comply with certain procedural requirements, including serving the pro se Plaintiffs with "Critical Notices" advising them of the requirements of the Federal and Local Rules when responding to a motion for summary judgment. See 9/8/06 Dec. & Ord., [dkt. # 97]; N.D.N.Y.L.R. 56.2.
Each set of defendants then promptly corrected their procedural deficiencies and re-filed their motions. See dkt. # 98 (motion by the City of Troy and all individual defendants employed by the City of Troy ("the City defendants")); dkt. # 99 (motion by the County of Rensselaer); and (3) dkt. # 101 (motion Defendant Chirstopher Cieplik ("Cieplik")).*fn2 These renewed motions are now before the Court. Because the motions were renewed, the stay of discovery remained in effect.
Soon thereafter, the Court began granting a series of adjournments due to Robert Krug's medical difficulties. See dkt. # 104 (adjourning return date of motions to 12/11/06 and extending opposition filing date to 11/27/06); dkt. # 106 (adjourning return date of motions to 3/12/07); dkt. # 132 (adjourning return date of motions to 7/9/07); dkt. # 136 (adjourning return date of motions to 9/10/07); dkt. # 138 (adjourning return date of motions to 11/13/07); dkt. # 141 (granting final adjournment of return date of motions to 3/10/08).
On November 30, 2006, the Appellate Division of the New York State Supreme Court, Third Department, issued a decision that reversed Mr. Krug's conviction, vacated his guilty plea, and remitted the matter to Rensselaer County Court for further proceedings. See People v. Krug, 824 N.Y.S.2d 499, 500 (3rd Dept. 2006); O'Connor 12/15/06 ltr. [dkt. # 111]. This Court ordered further briefing on the impact of this development. See 12/22/06 Order [dkt. # 112. Defendants complied, arguing, essentially, that the motions could and should be decided on their merits. See dkt. # 113, dkt. # 118, and dkt. # 126.
In July of 2007, the Court arranged for an attorney from the Albany area to represent the Plaintiffs pro bono. Plaintiffs declined the proffered representation and requested an additional adjournment. Dkt. # 137. The Court granted a "final adjournment" to March 10, 2008. See 10/23/07 Order, dkt. # 141. Pursuant to this Order, Plaintiffs' opposition papers were due on February 22, 2008. Id.; see N.Y.N.D. Local Rule 7.1(b)("The party opposing the motion must file its opposition papers with the Court and serve them upon the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.")(emphasis in original). Plaintiffs did not file timely opposition, but, instead, filed a letter on March 6, 2008 indicating that they were intending to file opposition papers but did not do so because they believed that their opposition papers were due on the return date of the motion - April 10, 2008. See dkt. # 143.*fn3 Despite the representation that they believed that their papers were due on April 10, 2008 (e.g. 4 days after they filed their letter of "intent" to oppose the motions), they requested yet another adjournment. Id. The Court denied the request but granted Plaintiffs leave to file late papers by 4:00 P.M. on March 19, 2008. Plaintiffs did not comply with this last extension,*fn4 and instead filed opposition papers to two of the three motions mid-morning on March 20, 2008. In that the Court finds that Plaintiffs have been afforded more than ample opportunity to submit timely responses, the Court will decide the motions on the materials submitted to date.*fn5
The Court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
In determining whether to grant summary judgment, the Court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts."Scott v. Harris, --- U.S. ----, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment."
The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita., 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
"[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 2007 WL 2071546, at * 9 (E.D.N.Y. July 16, 2007). The Plaintiffs, like all parties, must follow the procedural formalities of Local Rules, including Local Rule 7.1(a)(3).*fn6 Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003); see also Faretta v. California, 95 S.Ct. 2525, 2541 n. 46 (1975)("The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law."); Edwards v. INS, 59 F.3d 5, 8 (2nd Cir. 1995)("While a pro se litigant's pleadings must be construed liberally, . . . pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.").
Plaintiffs claim that in the early morning of June 6, 2001, Robert Krug "suffered a heart attack and or stroke, blacked out causing a fall and concussion precipitating: hallucinations, delirium, dementia, amnesia, migraines, and or cognitive brain injury." Am. Compl. ¶ 16. Plaintiffs assert, however, that "Robert L. Krug has no memory of the events that led to his subsequent arrest." Id. n. 1.
At approximately 10:45 a.m. on June 6, 2001, an individual walked into the HSBC Bank on Second Avenue in Troy, New York and handed the manager a note stating, essentially, that he had an explosive device in his brief case that could be detonated by remote unless he was provided with money from the bank, that there was more than one person involved in the robbery, and that some of the bank employees' family members were being monitored and could be harmed or taken hostage if problems occurred. City Defs. L.R. 7.1(a)(3) Stat. Mat. Facts ("City SMF") ¶ 1. The individual then abandoned his attempt to rob the bank and walked out of the building. Id. ¶ 2. At 11 a.m., City of Troy Police Officer Richard Schoonmaker responded to the scene and encountered an HSBC Bank employee leaving the bank. City Def. Ex. F (transcript of oral decision in suppression hearing in People v. Robert Krug, Indictment # 01-1095 (Ren. County Ct. June 25, 2002)) pp. 110-11. The employee gave Schoonmaker a description of the perpetrator and then, as the bank employee saw the perpetrator in an alley about a block from the bank, identified the perpetrator. Id.*fn8 Schoonmaker apprehended the person in the alley who turned out to be Robert Krug. Am. Compl. ¶ 16. Based upon the identification and because Krug matched the description of the perpetrator, see fn 8, supra, Schoonmaker arrested Krug for attempted robbery. City SMF ¶ 3; Am. Compl. ¶ 16. Krug was searched and found to be possession of a .22 caliber pistol. Am. Compl. ¶ 16.
Schoonmaker transported Krug to the Troy Police station in Schoonmaker's police car. Krug was not Mirandized but stated, when asked, that his name was Robert Krug.
City Def. Ex. F, p. 112. "A few seconds after responding to Officer Schoonmaker's question, [Krug] made other statements to the effect[:] '[H]e made me do it. Eric made me do it. He was waiting for me down from the bank.'" Id.*fn9
At the police station, Krug was Mirandized but refused to sign a waiver of rights form or answer any questions. County of Rensselaer's L.R. 7.1(a)(3) Stat. Mat. Facts ("Rens. SMF") ¶ 10; City Def. Ex. F. Krug requested an attorney and one was appointed for him. City Def. Ex. F; Am. Compl. ¶ 16.
On the morning of June 7, 2001, after learning of her husband's arrest on a television news broadcast, Plaintiff Bonnie Krug contacted the Troy Police Department to inquire about her husband's whereabouts and was told that if she wished to see her husband, she could go to the Troy City Court where he was to be arraigned. Am. Compl. ¶ 18. Krug was arraigned in Troy City Court, Criminal Part that morning. Rens. SMF ¶ 11. Although Bonnie Krug asserts that she went to Troy on June 7, 2001 only to see her husband and not to talk to the police,*fn10 she brought with her and gave to the police a letter written by her husband that she found at their residence. City SMF ¶ 5. The letter was a copy, or draft, of the note given to the manager of the HSBC Bank during the attempted robbery. Id. ¶¶ 5-6.
Once at the Troy Police Station, Bonnie Krug contends that she was detained by Sergeant John J. Waters of the Troy Police Department for several hours and interrogated about her and her husband's connection to the attempted robbery. Am. Compl. ¶¶ 20-24. During her time with Waters, Bonnie Krug signed a "Permission to Search Premises" form regarding her residence with Robert Krug in New Baltimore, New York. Rens. SMF ¶ 13. She contends that her consent to search was not voluntarily given but rather was the product of coercion because, at the time, she was being held in custody, did not read the statements on the form, and was not advised of her "constitutional or statutory rights." See Am. Compl. ¶¶ 19-25, 28, 36.
While Bonnie Krug was at the police station, Waters called Renssalear County Assistant District Attorney Joseph M. Ahearn to inquire whether the police needed a search warrant in addition to the consent form to search the residence. See Ahearn Aff. ¶ 4. ADA Ahearn advised that a search warrant was not necessary provided Bonnie Krug consented. Id. ADA Ahearn asserts that he was never advised, nor did he have any reason to believe, that Bonnie Krug was "in custody" at the time she signed her consent. Id.
After signing the form, Bonnie Krug was transported by Waters to the Federal Bureau of Investigation (FBI) office in Albany where they waited in the car for Defendant Cieplik, a Special Agent with the FBI. Am. Compl. ¶¶ 23-27. Cieplik went with Waters, Troy Police Officers Lee Hess and Terrence Buchanan, and Bonnie Krug to search Plaintiffs' residence in New Baltimore, New York. Id.; Rens. SMF ¶ 14. During the course of the search, Bonnie Krug executed a second "Permission to Search Premises" form for the adjoining residential property which Plaintiffs also owned. Rens. SMF ¶ 14. While at the second property, Officer Hess asked Krug for permission to search two vans on the property. City Def. Ex. F, p. 118. Krug gave him the keys to one van and he searched it, but she could not find a key to the second van so it was not searched. Id.
On June 13, 2001, the Troy City Court, Trial Part issued a search warrant pursuant to New York Criminal Procedure Law ("CPL") § 690.50 which authorized the search of Robert L. Krug's 1989 Oldsmobile, vehicle identification number 2G3AM51N7K230, and his brown briefcase. Id. ¶ 15. The search of the briefcase resulted in the seizure of various papers. Id. ¶ 16.
On July 12, 2002, a preliminary hearing was held in Troy City Court, Criminal Part, in connection with the prosecution of Robert Krug for the attempted robbery of the HSBC Bank. Id. ¶ 17. Krug waived his appearance at the preliminary hearing through his counsel pursuant to CPL §180.60. Id. ¶ 18. Upon the completion of testimony, the Court found reasonable cause to believe that a felony was committed by Robert Krug and the matter was bound over for Grand Jury proceedings. Id. ¶ 19.
On August 3, 2001, the Office of the District Attorney, County of Rensselaer served Robert Krug's counsel in the criminal matter with notice pursuant to CPL § 190.50 of its intent to present evidence to the Grand Jury of Rensselaer County on August 14, 2001 at 9:30 a.m. Id. ¶ 20. On August 9, 2001 the District Attorney served Krug's counsel a second notice pursuant to CPL §190.50 of its intent to present evidence to the Grand Jury on August 21, 2001 at 9:30 a.m. Id. ¶ 21. On August 21, 2001, the District Attorney presented evidence to the Grand Jury in connection with the alleged incident of June 6, 2001 at the HSBC Bank branch located at 600 Second Avenue in Troy, New York. Id. ¶ 22. At the conclusion of the proceedings, the Grand Jury returned a four count Indictment charging Robert Krug with two counts of attempted robbery in the first degree, criminal possession of a weapon in the third degree and criminal use of a firearm in the second degree. Id. ¶¶ 23-24.
In response to Krug's omnibus motion, the Rensselaer County Court reviewed the Grand Jury minutes and determined that the evidence presented was not legally sufficient to sustain count one alleging attempted robbery in the first degree and count four alleging criminal use of a firearm in the second degree. Id. ¶ 25. The County Court reduced count one of the Indictment to attempted robbery in the third degree and dismissed count four of the Indictment. Id. ¶ 26. The County Court found that the evidence submitted to the Grand Jury was legally sufficient to support counts two and three of the Indictment. Id. ¶ 27. The County Court found no defects in the Grand Jury proceedings which would warrant the dismissal of any counts of the Indictment pursuant to CPL § 210.35. Id. ¶ 28.
On June 25, 2002, the County Court held a suppression hearing regarding issues raised in Robert L. Krug's omnibus motion. Id. ¶ 29. At the conclusion of the hearing, the County Court found that the People had established by clear and convincing evidence that Bonnie Krug made a knowing, voluntary and free consent to search the two residences in New Baltimore, New York. Id. ¶ 30. In so concluding, the County Court found that Bonnie Krug read the forms before signing them, that the forms contained written warnings of the rights given up by signing the forms, and that her claims that she did not read or understand the forms were "incredible." City Defs. Ex. F, p. 119. The County Court denied Robert Krug's motion to suppress evidence obtained from the two residences. Id. p. 121. However, the County Court determined that Officer Hess was mistaken in his belief that the consent forms included the vans located on Plaintiffs' properties, so the Court granted Krug's motion to suppress any evidence obtained from the vans. Id. p. 120-121. The County Court also concluded that Robert Krug's response to Officer's Schoonmaker's question about his name was not the result of interrogation and, therefore, did not suppress that statement. Id. p. 120. The County Court further concluded that Krug's statement about "Eric" was spontaneously given and would not be suppressed. Id.
On August 6, 2002, Robert Krug, through his counsel, withdrew his notice of intent to offer psychiatric evidence pursuant to CPL § 260.10(2). Rens. SMF ¶ 31. On August 12, 2004, Robert Krug appeared in Rensselaer County Court and pled guilty to attempted robbery in the first degree with an agreed upon sentencing range of between nine (9) and twelve and one-half (121/2 ) years. Id. ¶ 32. Krug failed to appear for sentencing on September 24, 2002 and a bench warrant was issued pursuant to CPL § 530.70(2) on October 2, 2002. Id. ¶ 35.*fn11 On December 19, 2002, Krug was sentenced by the Rensselaer County Court to fifteen (15) years incarceration. Id. ¶ 26.
On November 30, 2006, the Supreme Court, Appellate Division, Third Department reversed Robert Krugs's conviction because he was not advised at his plea allocution that his sentence had a post-release component. People v. Krug, 824 N.Y.S.2d 499, 500 (3rd Dept. 2006). The People of the State of New York have elected to re-prosecute Robert Krug, and that criminal prosecution is presently pending. See 3/6/08 Letter from Plaintiffs.
The Court starts by reiterating the basic principle that each claim stands or falls on its own merits, and each claim must be viewed from the perspective of each Plaintiff. While the claims in this case arise from the same event - Robert Krug's prosecution - each Plaintiff's interests are not the same. Thus, while the Plaintiffs make arguments that blur the distinction between each ...