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Rockland Vending Corp. v. Creen

August 4, 2009

ROCKLAND VENDING CORP. AND KENNETH GALLAGHER, PLAINTIFFS,
v.
ROXANNE CREEN, SUED IN HER INDIVIDUAL CAPACITY, MARSHA F. RILEY, SUED IN HER INDIVIDUAL CAPACITY, AND STEWART KIDDER, SUED IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiffs Rockland Vending Corp. ("Rockland") and Kenneth Gallagher (collectively, "Plaintiffs") filed this action against Defendants Roxann Creen,*fn1 Marsha F. Riley, and Stewart Kidder (collectively, "Defendants"), officials of the New York State Department of Correctional Services ("DOCS"), in their individual capacities, pursuant to 42 U.S.C. § 1983 ("Section 1983"). Plaintiffs allege that (1) Creen violated Gallagher's Fourth and Fourteenth Amendment rights "[b]y holding him against his will without due process and restricting his liberty" (Am. Compl. ("AC") ¶ 69), (2) all Defendants violated Rockland's Fourteenth Amendment due process rights by taking Rockland's property "without any pre[-] or post-deprivation proceeding" (id. ¶ 68), and (3) all Defendants violated Rockland's First Amendment rights by retaliating against Rockland for "complaints made to the State Police and public officers" (id. ¶ 70). Plaintiffs seek compensatory and punitive damages, attorney's fees, and costs.*fn2 (Id. ¶ V(e)-(f).) Before the Court is Defendants' motion for summary judgment.For the reasons stated herein, summary judgment is granted as to all claims.

I. Background

The Court assumes the Parties' familiarity with the factual and procedural background of this case as it is set forth in Magistrate Judge Paul E. Davison's Report & Recommendation dated February 10, 2009 ("R&R").*fn3 In his R&R, Magistrate Judge Davison recommended that Defendants' motion for summary judgment be granted as to Gallagher's false imprisonment claim and Rockland's due process claim, and denied as to Rockland's First Amendment retaliation claim. (R&R 5.) All Parties filed timely objections to the R&R. Oral argument was held before this Court on June 24, 2009.

II. Discussion

A. Standard of Review

1. Review of Magistrate Judge's Report & Recommendation

A district court reviewing a magistrate judge's report and recommendation addressing a dispositive motion "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition," id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Fed. R. Civ. P. 5(b)(2)(C)-(F), see Fed. R. Civ. P. 6(d), as was the case here (R&R 18).

Where a party submits timely objections to a report and recommendation - as Plaintiffs did here by submitting objections on February 20, 2009, and as Defendants did here by submitting objections on March 12, 2009, following an extension of time granted by the Court - the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the... report [and recommendation] to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)).

2. Motion for Summary Judgment

Summary judgment may be granted when it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment.").

B. Gallagher's Fourth and Fourteenth Amendment Claims

Gallagher claims that Creen violated his Fourth and Fourteenth Amendment rights "[b]y holding him against his will without due process and restricting his liberty." (AC ¶ 69.) Magistrate Judge Davison, after considering these claims, concluded that because it is undisputed that Gallagher "voluntarily entered [Shawangunk Correctional Facility ('Shawangunk')] and never asked to or attempted to leave, and was never told he could not leave," that "the doors were locked only in the manner that was customary," and that Gallagher "believed that... Creen would allow him to leave so long as he left the vending machine proceeds behind," Gallagher "failed to set forth evidence from which a reasonable factfinder could determine that the elements of false imprisonment have been established or that the parallel constitutional rights were violated with respect to a deprivation of liberty." (R&R 14 (emphasis omitted).) Magistrate Judge Davison therefore recommended that the Court grant Defendants' motion for summary judgment as to Gallagher's claims. (Id. 14-15.) Plaintiffs objected to this recommendation, arguing that they had established a genuine issue of material fact as to whether Gallagher had been falsely imprisoned. (Pls.' Objections to R&R ("Pls.' Obj.") 7-9.) The Court therefore reviews the R&R de novo on this issue, and concurs with Magistrate Judge Davison that summary judgment is warranted.

"A section 1983 claim for false arrest arises under the Fourth Amendment right to be free from unreasonable seizures and is identical to a claim for false arrest under New York law. False arrest and false imprisonment are synonymous under New York law. To establish a claim for false arrest or false imprisonment, a plaintiff must show that (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Dones v. City of New York, No. 07-CV-3085, 2008 WL 2742108, at *6 (S.D.N.Y. July 9, 2008) (internal footnotes and quotation marks omitted). "In addition, [a] false imprisonment claim requires a prima facie showing of actual confinement or threatening conduct." Albury v. J.P. Morgan Chase, No. 03-CV-2007, 2005 WL 746440, at *13 (S.D.N.Y. Mar. 31, 2005) (internal quotation marks omitted) (alteration in original). "In the absence of a formal arrest, a seizure under the Fourth Amendment occurs where a 'reasonable person would have believed that he was not free to leave.'" Munoz v. City of New York, No. 04-CV-1105, 2008 WL 464236, at *4 (S.D.N.Y. Feb. 20, 2008) (quoting INS v. Delgado, 466 U.S. 210, 215 (1984)).

For essentially the reasons stated by Magistrate Judge Davison, Gallagher has failed to raise a genuine issue of material fact as to his claim that Creen falsely imprisoned him in violation of the Fourth Amendment. There is no evidence from which a reasonable jury could find that Creen intended to confine Gallagher within the prison facility. Gallagher argues that Creen's intent not to allow him to leave the prison with the vending machine proceeds is sufficient to establish her intent to confine him, but this view of confinement - i.e., that an individual who enters a place in order to remove what he believes is his property is confined if he is not permitted to leave with that property - is not supported by any authority cited by Plaintiffs, and the Court is unaware of any such authority.

The undisputed evidence is that Gallagher freely entered the prison on May 9, 2007, as he had done several times before (Aff. of Daniel Schulze in Supp. of Mot. for Summ. J. ("Schulze Aff.") Ex. B (Dep. of Kenneth Gallagher ("Gallagher Dep.")), at 12-13, 28-29), that as Gallagher walked through the prison the doors were locked in the normal manner, that Gallagher was taken to the location in the prison where he normally did his job, that no one indicated to Gallagher that he was not free to leave at any time either before or after he serviced the vending machines, that Gallagher never attempted to contact any other person while inside the prison (Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 40), that Gallagher never attempted to leave or asked to leave until he had serviced the vending machines and turned over the cash to prison staff (id. ¶ 39), and that Gallagher spent only seven minutes longer inside the prison on May 9, 2007 than he did during his previous service call on May 4, 2007 (id. ¶ 38). In light of this evidence and Creen's sworn and unchallenged statement that she did not intend to confine Gallagher (Schulze Aff. Ex. F (Aff. of Roxann Creen in Supp. of Mot. for Summ. J. ("Creen Aff.") ¶¶ 3-4)), no reasonable jury could find that there was any actual confinement or that Creen intended to confine Gallagher.*fn4

The Court briefly notes that Plaintiffs' Amended Complaint alleges that Creen's actions, in addition to violating Gallagher's Fourth Amendment rights against false imprisonment, also violated his Fourteenth Amendment due process rights, and that Magistrate Judge Davison recommended that this due process claim should also be dismissed. Because Plaintiffs' objections to the R&R focused solely on Gallagher's false imprisonment claim and did not specifically object to its conclusion as to Gallagher's due process claim (Pls.' Obj. 7-9), the Court reviews this part of the R&R for clear error only.

The Court finds that there is no error, clear or otherwise, in Magistrate Judge Davison's recommendation that Gallagher's claims be dismissed in full. Gallagher's failure to establish an issue of material fact as to whether he was actually confined negates his claim of a deprivation of liberty for due process purposes; moreover, a due process claim relying on the same facts as a false imprisonment claim cannot be sustained even if confinement could be shown. See Farag v. United States, 587 F. Supp. 2d 436, 450 n.22 (E.D.N.Y. 2008) ("[P]laintiffs' Fourth Amendment and Fifth Amendment due-process claims are both premised on the same factual allegations of false arrest and false imprisonment. Consequently, the Fourth Amendment's specific guarantee of freedom from unreasonable seizures, not the Fifth Amendment's general guarantee of due process, provides the appropriate framework of analysis."); Hall v. Brown, 489 F. Supp. 2d 166, 174-75 (N.D.N.Y. 2007) ("Plaintiff's claim that she was deprived of liberty without due process of law, being duplicative of her false imprisonment claim, cannot stand.").

Accordingly, all of Gallagher's claims are dismissed.

C. Rockland's Fourteenth Amendment Due Process Claims

Rockland claims that, by retaining the cash collected from Rockland's vending machines on May 9, 2007, and impounding Rockland's machines, "without any pre[-] or post-deprivation proceeding" (AC ¶ 68), Defendants violated Rockland's Fourteenth Amendment due process rights. Magistrate Judge Davison considered these claims and concluded that Rockland had at least raised a genuine issue of material fact as to whether Defendants were obliged to provide predeprivation process before impounding Rockland's machines or retaining the money in those machines. (R&R 9-10.) In particular, because it was undisputed that Defendants had not provided any such proceeding, Magistrate Judge Davison concluded that Rockland had established "for purposes of deciding Defendants' Motion" that Defendants "violated Rockland's due process rights." (Id. 10.) However, because "the withholding of equipment and money was objectively reasonable, as a matter of law," Magistrate Judge Davison concluded that "Defendants are entitled to the protection of qualified immunity" as to Rockland's due process claims, and recommended that the Court grant Defendants' motion for summary judgment as to these claims. (Id. 12.) Plaintiffs objected to this recommendation, arguing that Defendants were not entitled to qualified immunity. (Pls.' Obj. 3-7.) Defendants objected to the R&R's preliminary conclusion that Rockland had asserted a valid due process claim. (Defs.' Objections to R&R ("Defs.' Obj.") 12-17.) The Court thus reviews de novo this portion of the R&R, and concludes that Defendants are entitled to summary judgment on grounds that Rockland has not established a genuine issue of material fact as to whether its due process rights were violated.

"In order to sustain an action for deprivation of property without due process of law, a plaintiff must first identify a property right, second show that the state has deprived him of that right, and third show that the deprivation was effected without due process." Local 342, Long Island Pub. Serv. Employees v. Town Bd. of Town of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994) (internal quotation marks and emphasis omitted).

1. Identifying a Property Right

"Identifying the relevant property interest is... a two-step process." O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005). "First, [the court] must determine whether some source of law other than the Constitution, such as a state or federal statute, confers a property right on the plaintiff." Id. "Once such a property right is found, [the court] must determine whether that property right constitutes a property interest for purposes of the Fourteenth Amendment." Id. (internal quotation marks omitted).

In opposing Defendants' motion for summary judgment as to Rockland's due process claims, Rockland asserts that it was deprived of its property rights in "its machines, product and funds" (Pls.' Mem. 13) when Defendants engaged in "self-help at Shawangunk," and when they "refus[ed] to allow plaintiff [to] retrieve its property at Lincoln [Correctional Facility ('Lincoln')]" (id. 14). According to Rockland, it had "settled property interests" in "ownership of the vending machines, [and] the contents thereof, including the ...


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