MEMORANDUM-DECISION AND ORDER*fn1
Plaintiff Mark Lyman ("Plaintiff" or "Lyman"),*fn2 an activist affiliated with the Survivors Network of those Abused by Priests ("SNAP"), brought this case asserting various civil rights violations stemming from protests in front of the Holy Cross Church in Albany, New York. On March 3, 2008, the Court partially granted Defendants' Motions to dismiss, dismissing all claims and defendants except for Plaintiff's claim against Defendant Pizzola alleging that the post-arrest search of his vehicle violated the Fourth Amendment. Order (Dkt. No. 60). The Court maintained that claim because there were no allegations or evidence that Plaintiff was arrested shortly after exiting his vehicle. Order at 8 (Dkt. No. 60). Currently before the Court is a Motion for summary judgment filed by Defendant Pizzola and a cross-Motion for recusal and reconsideration filed by Plaintiff. Motion for summary judgment (Dkt. No. 64); cross-Motion (Dkt. No. 74).
A. Compliance with the Local Rules
The facts considered by the Court are primarily based on Defendant's Statement of Material Facts. Although in the cross-Motion and response, Plaintiff submitted a Statement of Material Facts, it does not comply with the Local Rules. Local Rule 7.1 requires that in opposing a summary judgment motion, the "non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." Id. More importantly, the Rule states that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." Id. (emphasis in original). Plaintiff, who is represented by counsel, has failed to specifically controvert Defendant's facts as set forth in the Statement of Material Facts, and failed to provide citations to the record where any factual issues arise or in support of any of the statements set forth by Plaintiff. Therefore, the Court deems Defendant's facts admitted and finds that there are no genuine issues of material fact.*fn3
Plaintiff is the Capital Region Director of SNAP. Def's Stmt. of Mat. Facts ¶1. In May 2005, Plaintiff and other members of SNAP began protesting outside the Holy Cross Church in Albany, New York. Am. Compl. (Dkt. No. 3) at ¶ 25; State Court TRO (Dkt. No. 61, Attach. 1). On or about September 6, 2005, the Roman Catholic Archdiocese obtained a temporary restraining order ("TRO") prohibiting any protests within 100 feet of the church. Am. Compl. at ¶ 32; State Court TRO (Dkt. No. 61, Attach. 1). The boundaries of the prohibited area were designated and marked on the sidewalk by members of the Albany Office of Corporation Counsel in Plaintiff's presence. Am. Compl. at ¶ 42; Lyman Dep. at 97 (Dkt. No. 61, Attach. 5). On September 11, 2005, Defendant Colonno of the Albany Police Department walked the boundaries with Plaintiff, to ensure he was aware of them. Am. Compl. at ¶¶ 41-42; Lyman Depo. at 19-20.
On April 9, 2006, Officer Guinta observed a dark pickup truck, later determined to be driven by Plaintiff, double-parked on Brevator Street, across from Holy Cross Church. Rehfuss Aff. Exh. E (Guinta Aff.) at ¶ 2 (Dkt. No. 61, Attach. 6); Rehfuss Aff. Exh. F (NYS Incident Report dated April 9, 2006) (Dkt. No. 61, Attach. 7); Rehfuss Aff. Exh. G (NYS Arrest Report dated April 9, 2006) (Dkt. No. 61, Attach. 8). After Guinta passed the truck, Plaintiff completed a U-turn and parked the vehicle inside the boundaries designated by the TRO. Rehfuss Aff. Exh. E at ¶ 3. In completing the U-turn, Plaintiff had used the entrance to the church, therefore also entering into the boundaries of the TRO. Rehfuss Aff. Exh. J (Guinta Depo.) at 24 (Dkt. No. 76, Attach. 3). Officer Guinta testified that he used his training to determine that Plaintiff was parked within the TRO boundaries based upon car lengths. Rehfuss Aff. Exh. J at 23.
Immediately after Plaintiff exited his vehicle, Officer Guinta informed him that he was parked in violation of the terms and conditions of the TRO and that he would have to move. Rehfuss Aff. Exh. E ¶4; Exh. B at 7.; Exh. C at 8, 24; Exh. D at 86-91; Exh. F; Exh. G. Plaintiff refused to move his vehicle. Rehfuss Aff. Exh. E ¶5; Exh. F; Exh. G. Guinta informed Plaintiff that he would be arrested if he did not move his vehicle. Rehfuss Aff. Exh. E at ¶6; Exh. C at 8, 24; Exh. D at 86-91; Exh. F; Exh. G. Plaintiff then walked towards Officer Guinta, further into the TRO boundary. Exh. E at ¶6. Plaintiff was then arrested by Guinta for taking a U-Turn within the TRO boundaries and parking his truck within the boundaries. Rehfuss Aff. Exh. J at 20, ¶20-25. After Plaintiff was arrested, measurements were taken that confirmed that Plaintiff's vehicle was parked within the TRO boundaries. Rehfuss Aff. Exh. J at 24, ¶9-12. After Plaintiff's arrest, the Forensics Unit of the Albany Police Department was contacted to search and photograph the contents of Plaintiff's truck before it was towed from the scene. Rehfuss Aff. Exh. F; Exh. G; Exh. H; Exh. I. Defendant Detective Victor Pizzola was the member of the Forensics Unit who arrived on the scene to document the contents of the Plaintiff's truck. Rehfuss Aff. Exh. H; Exh. I.
A. Summary Judgment Motion
A motion for summary judgment is granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. Lipton, 71 F.3d at 469. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" contained in the pleadings. Fed.R.Civ.P. 56(e); accord Sista, 445 F.3d at 169. That is, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. To defeat the motion, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Fed. R. Civ. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Only disputes over material facts--facts that might affect the outcome of the suit under the governing law--will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court notes that Plaintiff was well aware of the pending Motion for summary judgment and was given two extensions to respond to the Motion. Dkt. Nos. 68, 73. In his response, however, Plaintiff failed to oppose the substance of Defendant's Motion for summary judgment. See Dkt. No. 74. Nonetheless, the Court must still examine "the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006) (citation omitted) ("Even unopposed motions for summary judgment must fail where the undisputed facts fail to show that the moving party is entitled to judgment as a matter of law.").
Plaintiff's remaining claim asserts a violation of his Fourth Amendment right to be free from illegal search and seizure based on the search of his car following his arrest. Am. Compl. at ¶ 176 (Dkt. No. 3). An officer is entitled to conduct a search of a vehicle incident to arrest to satisfy both security and evidentiary concerns, whether the suspect was arrested in or next to the vehicle. United States v. Thornton, 541 U.S. 615, 620-21 (2004) ("[i]n all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle."). Therefore, "so long as an arrestee is the sort of 'recent occupant' of a vehicle . . . officers may search that vehicle incident to the arrest." Id. 541 U.S. at 623-24. Thus, as previously noted by the Court, "if Plaintiff's car was within the restricted area or if Plaintiff had occupied the car recently before his arrest, Pizzola likely had probable cause to search Plaintiff's car." Order at 8 (Dkt. No. 60).
Plaintiff has admitted to exiting the vehicle immediately prior to his arrest. Rehfuss Aff. Exh. B at 7; Exhibit C at 8, 23-24; Exh. D at 86-91. The arrest took place within the immediate vicinity of Plaintiff's truck. Rehfuss Aff. Exh. E at ¶8; Exh. B at 7; Exh. C at 8, 24; Exh. D at 86-91. The search of the vehicle was therefore proper and not in violation of Plaintiff's Fourth Amendment rights. See Thornton, 541 U.S. at 623-24. Defendant has met his burden of demonstrating that no material ...