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Thomas v. O'Brien

August 9, 2010

GREGORY THOMAS, PLAINTIFF,
v.
JAMES O'BRIEN SYRACUSE POLICE OFFICER, OFFICER DADEY, OFFICER CUNNINGHAM, SGT. RATHBUN, DEFENDANTS,



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

This action stems from plaintiff pro se Gregory Thomas's arrest for loitering and criminal possession of a controlled substance on April 14, 2005, in Syracuse, New York. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and alleges that defendant law enforcement officers James O'Brien, Daniel Dadey, Richard Cunningham, and Thomas Rathbun subjected him to unlawful search and seizure, false arrest, and excessive force, in violation of the Fourth Amendment of the United States Constitution. Plaintiff further claims that defendants' racial animus in initiating and executing his arrest deprived him of his right to equal protection, in violation of the Fourteenth Amendment. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure*fn1 and seek dismissal of plaintiffs' claims of unlawful search and seizure, false arrest, and excessive force. Defendants have not sought dismissal of plaintiff's equal protection claim. Plaintiff opposes defendants' motion.

II. DEFENDANTS' EVIDENCE

A. Affidavits

1. Daniel Dadey, Police Officer, Syracuse Police Department

In his affidavit, Officer Dadey states:

On April 14, 2005, I was working with Sergeant Rathbun, Detective O'Brien and Detective Cunningham in the area of McKinley Avenue and Salina Street. We were driving an unmarked white sports utility vehicle. I was the driver of the vehicle. The corner of McKinley and Salina Street is known for its high drug activity and gun violence as well as an area governed by the Elk Block Gang.

While driving north on South Salina Street, I observed a black male personally know[n] to me as being Gregory Thomas, a known drug dealer, and a member of the Elk [B]lock Gang, standing on the corner conversing with an unknown female and two unknown black males.

As we pulled up to the corner to speak with Mr. Thomas, the other officers proceeded to get out of the vehicle. Mr. Thomas, upon seeing the officers, took off running. Detective Cunningham, Detective O'Brien and Sergeant Rathbun got out of the vehicle and pursued Mr. Thomas on foot. I drove down on block and took a right onto Elk Street where I parked in the 100 block. I got out of the vehicle and came through the backyards off of the 100 block Elk Street, but by the time I arrived at the front porch on McKinley, Mr. Thomas was already apprehended and handcuffed.

I did not assault Plaintiff with closed fists and elbows about his head and body. I never spoke with Mr. Thomas. Also I did not search Mr. Thomas or observe anyone searching him. I never put my hands on Mr. Thomas in any way and did not confiscate $25,000 from his person.

I did not hear a police officer or detective use a racial slur towards Mr. Thomas. Mr. Thomas was not strip searched at the scene and no members of the unit performed a cavity search of Mr. Thomas.

Dadey Affidavit, ¶¶ 4-10 (paragraph numbers omitted).

2. Richard Cunningham, Detective, Syracuse Police Department In his affidavit, Detective Cunningham states that:

On April 14, 2005, I was working as part of the Emergency Response Team. There had been many shootings in the City of Syracuse and the Chief of Police thought that the members of the Emergency Response Team should patrol high crime/drug areas in order to keep gangs from congregating on street corners.

On April 14, 2005, I was working with Detective O'Brien, Officer Dadey, and Sergeant Rathbun in the area of McKinley Avenue and Salina Street. We were driving an unmarked white sports utility vehicle.

While driving on Salina Street, we observed a person leaning against a fence standing on the corner. Either Detective O'Brien or Officer Dadey recognized this person to be a known drug dealer, Gregory Thomas . . . .

We pulled the vehicle over to speak with Mr. Thomas.

As soon as Mr. Thomas saw the vehicle he took off running down the sidewalk.

Sergeant Rathbun, Detective O'Brien and I got out of the vehicle and pursued Mr. Thomas on foot. I was not running directly behind Mr. Thomas but I was running parallel to him down the sidewalk. While he was running I observed Mr. Thomas throw his cell phone from his pants pockets. Mr. Thomas proceeded to cut over into the backyards of several homes on McKinley Avenue. As he was running I tried to tackle him and instead Mr. Thomas knocked me to the ground and continued to flee. Mr. Thomas headed up on the front porch of a home in the 100 block of McKinley. We later learned that Mr. Thomas lived in the home. Detective O'Brien and I attempted to take Mr. Thomas into custody and he resisted. We took Mr. Thomas to the ground on the front porch while he was attempting to go inside of the home.

Plaintiff was not assaulted but forcibly taken into custody utilizing sufficient reasonable force necessary to take him into custody.

Mr. Thomas was handcuffed. Mr. Thomas' cell phone was apprehended and turned . . . in to the police department. . . . I seized four hundred thirty five dollars from Mr. Thomas' pocket and subsequently turned it in as evidence. Mr. Thomas was searched incident to a lawful arrest but was not strip searched at the scene by any Defendant. At no time did a member of the Syracuse Police Department perform a cavity search of Mr. Thomas in relation to this incident. Likewise, at no time during this incident did a police officer or detective use a racial slur towards Mr. Thomas.

Mr. Thomas was taken to a marked patrol car and transported to the Justice Center. Cunningham Affidavit, ¶¶ 3-12 (paragraph numbers omitted).

3. Thomas Rathbun, Sergeant, Syracuse Police Department

Sergeant Rathbun states in his affidavit that he was working with the other defendants on April 14, 2005, and:

While driving on Salina Street, we observed a person leaning against a fence on the corner of McKinley Avenue and Salina Street. To the best of my knowledge either Detective O'Brien or Officer Dadey recognized this person to be a known drug dealer and gang member, Gregory Thomas . . . .

As soon as Mr. Thomas saw the vehicle he took off running down the street. The vehicle was pulled over and Detective Cunningham, Detective O'Brien and I got out of the vehicle and pursued Mr. Thomas on foot. I recall Detective Cunningham taking a different route in pursuing Mr. Thomas. Mr. Thomas ...


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