The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff, Christopher McZorn, brought the instant action pro se seeking damages for the alleged violation of his constitutional rights related to an automobile stop, search, arrest and interrogation by Sgt. William Haven of the Johnson City Police Department. Plaintiff alleges that: (1) he was falsely arrested and imprisoned; (2) he suffered defamation of character; (3) he was coerced and threatened into making an involuntary statement and of self incrimination; and (4) he suffered violations of the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments. Defendants move for summary judgment arguing that: (1) Defendants did not violate Plaintiff's civil rights; (2) Defendants had probable cause for the search and arrest; (3) Defendants are entitled to qualified immunity; (4) Plaintiff is collaterally estopped from arguing the probable cause issue; and (5) the defamation action has no basis in state or federal law.
On July 6, 2007, while on parole, Plaintiff was arrested by Defendant Haven and charged with criminal possession of a controlled substance in the third degree. According to the investigative report, a confidential informant advised Investigator John Ward (New York State Police) that Plaintiff was currently in possession of cocaine and marijuana and that he was operating a 1995 Mitsubishi Mirage, with New York State Registration number DXY8347. The informant also mentioned that Plaintiff's girlfriend, Stephanie Beardsley, was in the car.
Officers approached the vehicle occupied by Plaintiff and Ms. Beardsley. Ms. Beardsley granted Sgt. Haven permission to search her purse. This search resulted in Sgt. Haven finding two bags of suspected marijuana. A parole officer, who was also present, conducted a search of the vehicle and found seven additional bags of marijuana in a backpack and two bags of suspected cocaine in a deodorant container. Plaintiff was placed under arrest and advised of his Miranda rights. Plaintiff waived his rights and indicated so by initialing and signing a Miranda Warning Report. Plaintiff also gave a statement wherein he admitted possessing crack cocaine the police found in his vehicle and that he intended to sell the cocaine. Plaintiff alleges that this statement was coerced and involuntary. Plaintiff was charged with criminal possession of a controlled substance in the third degree.
Plaintiff was indicted by a Grand Jury and arraigned on that indictment. Plaintiff, represented by counsel, moved to suppress the statement made to police claiming it was involuntary. Plaintiff was present during the entire suppression hearing and his attorney had an opportunity to cross examine the witnesses. Judge Martin E. Smith, Broome County Court Judge, issued a decision and order in the suppression hearing, which concluded in pertinent part, that:
The People have met their burden in establishing that the search in this case was beyond being a parole administrative search participated in by parole officer Richard White. The Court also finds that the search was indeed consensual.
The Court found that Plaintiff was, in fact, brought to Johnson City Police Department, properly advised of his Miranda rights, voluntarily waived those rights, agreed to speak to police officers, and also thereafter gave statements to the police, both verbal and written, that were admitted at trial.
Plaintiff twice went to trial on this charge. The first trial ended in a hung jury. Plaintiff was acquitted following the second trial.
Summary judgment, pursuant to Fed. R. Civ. P. 56(c), is warranted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations ... of the [plaintiff's] pleading ...."). Rather, "[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at *8 (W.D.N.Y. Mar. 29, 2004) [internal quotations omitted] [emphasis added]. It must be apparent that no rational finder of fact could find in favor of the non-moving party for a Court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) [citation omitted].
When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); seealsoSealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.
Additionally, where the nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute. Cruz v. Lashway, 2009 U.S. Dist. LEXIS 51270, at *8 (N.D.N.Y. June 18, 2009) (citing Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (citations omitted); accord Lee v. Alfonso, 112 Fed. Appx. 106 (2d Cir. Oct. 14, 2004); Fox v. Amtrak, 04-cv-1144, 2006 U.S. Dist. LEXIS 9147, at *1-4 (N.D.N.Y. Feb. 16, 2006)). Even pro se litigants must obey a district court's procedural rules. Cruz, 2009 U.S. Dist. LEXIS 51270, at *8 (citing Krug v. County of Rennselaer, 2006 WL 2669122, at *3 (N.D.N.Y. Sept. 18, 2006) ("When dealing with a pro se party, certain procedural rules apply so as to insure that the pro se litigant is not disadvantaged by the lack of legal training. In this regard, the Local Rules require that [a pro se party be informed of the consequences of failing to respond to a motion for summary judgment, before those consequences may be imposed]."); see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) ("This Court has also held that summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default.")). The Court, in this case, warned Plaintiff of the consequences of failing to respond. See Docket No. 58. Local Rule 7.1(a)(3) requires that a nonmoving party file a response to the moving party's ...