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McDowell v. Bearor

September 2, 2009

REUBEN MCDOWELL, PLAINTIFF,
v.
JOSEPH BEAROR*FN1, STATE POLICE INVESTIGATOR; JOE GRECO, STATE PAROLE OFFICER; JOHN DOE, STATE POLICE OFFICER;*FN2 AND ROBERT LAHART, SENIOR PAROLE OFFICER, DEFENDANTS.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Plaintiff pro se Reuben McDowell ("McDowell") brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 alleging that defendants, a New York State Police (NYSP) officer and two New York State parole officers, violated his constitutional rights under the Fourth and Fourteenth Amendments. Am. Compl. (Docket No. 30).*fn4 Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Docket No. 58. McDowell opposes the motion. Docket No. 61. For the following reasons, defendants' motion is granted.

I. Background

The facts are related herein in the light most favorable to McDowell as the non-moving party. See subsection II(A) infra.

A. The Investigation

On April 25, 2002, McDowell was released on parole from a sentence of imprisonment upon his conviction for robbery. Docket No. 58-7 at 9; C. McDowell Aff. (Docket No. 30) at 28) ¶ 2. As relevant to the present case and pursuant to his conditions of release, McDowell was prohibited from acting "in such a manner as to violate the provisions of any law to which [he is] subject . . . [to] a penalty of imprisonment . . . ." and "us[ing] or possess[ing] any controlled substance . . . ." Docket No. 58-7 at 9. Upon his release, defendant Greco, a Parole Officer with the New York State Division of Parole, was appointed McDowell's parole officer. Greco Decl. (Docket No. 58-7) ¶ 3; McDowell Dep. (Docket No. 58-6)*fn5 at 50. During his tenure as a parole officer, Greco had meet members of McDowell's family and knew where McDowell resided from his numerous home visits. Greco Decl. ¶ 4.

On the morning of March 2, 2006, Greco received a telephone call from Jane McLaughlin, a woman who identified herself as McDowell's sister-in-law. Greco Decl. ¶ 5; Docket No. 58-7 at 14. McLaughlin reported that McDowell had stolen her mother's ATM card and used it to make unauthorized withdrawals from her bank account. Greco Decl. ¶ 6; Docket No. 58-7 at 14. Greco went to McLaughlin's place of employment, Glens Falls National Bank, to conduct an interview. Greco Decl. ¶ 7. McLaughlin reported that through her employment at the bank, she had access to the records of a joint account with her parents and that she noticed suspicious activity when she was reviewing her mother's bank statements. Id. ¶¶ 8, 10. McLaughlin identified her parents as Mr. and Mrs. Philio, whom Greco knew to be McDowell's in-laws because McDowell and his wife resided with them.

Id. ¶ 9; C. McDowell Aff. ¶ 2. McLaughlin reported withdrawals on February 21 and 24, 2006 for $200 and $300 respectively, which neither she nor her mother had made. Greco Decl. ¶ 11. McLaughlin checked the bank security camera for the days in question and observed McDowell making the transactions. Id. ¶ 12. When McDowell was confronted, he admitted to taking the money. Id. ¶ 12. McLaughlin advised Greco that she wished to press charges against McDowell for the theft of her mother's money. Id. ¶ 13.

After the interview, Greco spoke by telephone to his supervisor, defendant Lahart, a Senior Parole Officer. Greco Decl. ¶ 14; Docket No. 58-7 at 14; Lahart Decl. (Docket No. 58-8) ¶¶ 7, 11. Greco requested that, based on the aforementioned information, a parole warrant be issued for McDowell's arrest for failing to comply with his conditions of release. Greco Decl. ¶ 14; Lahart Decl. ¶¶ 7, 13-17. Part of Lahart's "duties and responsibilities . . . [were] to make the discretionary decision of whether to issue a [parole warrant] . . . following the receipt of information that a parolee was in violation of the conditions of . . . release." Lahart Decl. ¶ 6. Lahart concluded that there was probable cause for the warrant based on what he was told by Greco, and issued a warrant. Greco Decl. ¶ 18; Lahart Decl. ¶¶ 18-19. This commenced an administrative proceeding to determine whether McDowell's parole should be revoked. Lahart Decl. ¶ 9. Greco then went to the NYSP station in Queensbury, New York and requested assistance as there were no other parole officers immediately available. Greco Decl. ¶¶ 19-20; Bearor Decl. (Docket No. 58-4) ¶ 5. Police assistance was also required to transport McDowell to a detention facility as Greco's state vehicle was not equipt for the transport. Greco Decl. ¶ 21.

B. The Arrest

Defendant Bearor, an NYSP Investigator, was assigned to investigate the criminal charges requested by McLaughlin as well as to assist in McDowell's arrest. Greco Decl. ¶ 22; Bearor Decl. ¶ 6. Prior to leaving the station, Greco informed Bearor that a parole warrant was issued by Lahart by telephone earlier that morning. Bearor Decl. ¶ 10. Bearor and Greco rode together in an unmarked car to McDowell's residence. Greco Decl. ¶ 24; Docket No. 58-7 at 14. Once at the residence, Greco knocked on the door and was told to enter by an unidentified white male. Greco Decl. ¶¶ 25-26; Bearor Decl. ¶¶ 12-13; C. McDowell Aff. ¶ 5 (explaining that a local contractor was the individual who answered the door and allowed defendants to enter the residence); McDowell Dep. at 42-43 (same). Greco asked the man if McDowell was home, was told that he was and was directed upstairs. Greco Decl. ¶ 27; Bearor Decl. ¶ 14. Greco and Bearor entered the home, climbed the stairs, and found McDowell watching television in his bedroom. Greco Decl. ¶¶ 28-29; Bearor Decl. ¶¶ 15, 17. McDowell was arrested, and handcuffed. Greco Decl. ¶ 30; Bearor Decl. ¶ 18.

McDowell was escorted to defendants' vehicle where he was advised of his constitutional warnings by Bearor. Greco Decl. ¶ 31; Bearor Decl. ¶ 19. While driving to the Queensbury Police Station, Greco asked McDowell why he stole the ATM card and McDowell replied that while he did take the money, the reason was "too deep" for others to understand. Greco Decl. ¶¶ 32-33; Docket No.. 58-7 at 14; Bearor Decl. ¶¶ 21-22. McDowell admitted stealing $700-$800 from his in-laws. Greco Decl. ¶ 35; Docket No. 58-7 at 14; Bearor Decl. ¶ 24. McDowell stated, however, that he did not view the transactions as larceny as he fully intended to reimburse his in-laws. Greco Decl. ¶ 37; Docket No. 58-7 at 14; Bearor Decl. ¶ 27. Bearor asked McDowell if he wished to make a statement, but McDowell declined as he had already made amends to his family. Greco Decl. ¶ 38; Bearor Decl. ¶ 28.

At the Queensbury Police Station, Greco requested that McDowell provide him with a urine sample, which tested positive for cocaine. Greco Decl. ¶ 39; Bearor Decl. ¶ 29. After the intake procedures were completed, Greco provided Bearor with a conformed copy of the parole warrant and requested that Bearor transport McDowell to the Warren County Correctional Facility. Greco Decl. ¶ 40; Docket No. 30 at 29; Docket No. 58-7 at 12; Bearor Decl. ¶ 30.*fn6 Bearor was again asked to transport McDowell as Greco did not have a suitable vehicle for transporting a prisoner. Greco Decl. ¶ 44.

C, The Post-Arrest Proceedings

Greco then returned to McDowell's home to confer with McDowell's wife and in-laws and to request their testimony at McDowell's preliminary violation hearing the following week. Greco Decl. ¶ 45. Greco also completed a report which was sent to Lahart. Greco Decl. ¶ 47; Docket Nos. 30 at 35, 58-7 at 16-17, 58-8 at 12-13 (stating that withdrawing money from his mother-in-law's bank account without permission on February 21 and 24, 2006 violated his conditions of release as did his positive urine test for cocaine); Lahart Decl. ¶ 31*fn7 . On March 3, 2006, the certified copy of the parole warrant was filed by Lahart which attested that the certified copy was authentic. Docket Nos. 30 at 30, 58-8 at 10; Lahart Decl. ¶ 29.

On March 3, 2006, McDowell was subsequently served with the report notifying him of the charges he faced for violation of his parole and a preliminary hearing scheduled for March 10, 2006. Greco Decl. ¶ 49; Docket No. 58-7 at 19. On the day of the hearing, McDowell waived his right to the hearing on advice of counsel. Greco Decl. ¶ 51; Docket Nos. 58-7 at 21, 58-8 at 15. Also on advice of counsel, McDowell chose to postpone his final revocation hearing pending the resolution of the criminal charges being investigated by Bearor. Greco Decl. ¶¶ 53-54.

Bearor's investigation included interviews with, and documents from, Jane McLaughlin and her parents, Marion and Richard Philo. Bearor Decl. ¶¶ 31, 32.*fn8 On March 15, 2006, Bearor completed two informations, charging McDowell with two counts of grand larceny, one count of theft of an ATM card, and one count of theft from Marion Philo's bank account. Bearor Decl. ¶ 35. On March 17, 2006, Bearor met with the district attorney concerning the charges. Id. at ¶ 36. On March 23, 2006, Bearor presented the informations to the court. Id. at ¶ 37. Bearor did not re-arrest McDowell because he was already in custody but deemed March 23, 2006, the date criminal charges were filed, as the arrest date in his report. Id. at ¶¶ 38, 50. On March 24, 2006, the court issued an order to produce McDowell for an arraignment, on March 27, 2006. Id. at ¶ 39; Docket Nos. 30 at 32, 58-4 at 16. McDowell was arraigned before the Queensbury Town Justice and remanded to custody. Bearor Decl. ¶¶ 41-43; Docket Nos. 30 at 33, 58-4 at 18. The following day, Bearor submitted his report which included copies of the arrest report*fn9 and supporting depositions from McLaughlin and the Philos. Bearor Decl. ¶ 45; Docket Nos. 58-4 at 20-29, 61-2 at 47-54.

During his incarceration, McDowell was involved in an altercation with another inmate which resulted in an additional felony conviction for possession of a weapon. Greco Decl. ¶ 55; Docket Nos. 58-7 at 23, 58-8 at 18, 61-2 at 56. The final parole revocation hearing was then canceled in light of McDowell's felony conviction as that conviction sufficed to revoke McDowell's parole. Greco Decl. ¶ 57. McDowell was remanded to state custody where he remained until recently. See note 3 supra; see also Greco Decl. ¶ 59; Docket No. 58-7 at 26.

II. Discussion

In his amended complaint, McDowell has alleged that defendants violated his (1) Fourth Amendment rights by securing the parole warrant improperly and performing an unauthorized search of the Philos' home; (2) Fourteenth Amendment rights by taking him to the Queensbury Police Station improperly, failing to follow their own procedures for the issuance and execution of a parole warrant, and violating his rights to equal protection of the law; and (3) engaging in a conspiracy to have him arrested and incarcerated. Defendants contend that (1) Lahart is ...


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