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Sheldon J. English v. Inv. K. Pero

March 31, 2011

SHELDON J. ENGLISH, PLAINTIFF,
v.
INV. K. PERO, OFF # RPD, AND
0F TECH R. RICE, OFF # RPD, (CONSENT) DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION andORDER

JURISDICTION

On June 13, 2007, the parties to this action consented pursuant to 28 U.S.C. § 636(c)(1), to proceed before the undersigned. The matter is presently before the court on motions for summary judgment filed by Defendants on July 12, 2010 (Doc. No. 30), and by Plaintiff on December 8, 2010 (Doc. No. 33).

BACKGROUND and FACTS*fn1

Plaintiff Sheldon J. English ("Plaintiff" or "English"), proceeding pro se, commenced this civil rights action on April 6, 2007, alleging that on April 22, 2005, while Plaintiff was being detained at Monroe County Jail in Rochester, New York, after being arrested for criminal weapons possession, Defendants Rochester Police Department ("RPD") Officers Investigator K. Pero ("Pero"), and Technician R. Rice ("Rice") (together, "Defendants"), unlawfully planted illegal narcotics in a vehicle in which Plaintiff had been a passenger, which were found during an inventory search subsequent to Plaintiff's arrest. On October 18, 2005, Plaintiff was indicted by a federal grand jury in connection with the April 22, 2005 incident on a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1). (05-CR-6142, Doc. No. 1)*fn2 ("Indictment"). Following arraignment on the Indictment on October 20, 2005 (05-CR-6142, Doc. No. 8), Plaintiff, by Order filed October 31, 2005 (05-CR-6142, Doc. No. 10), was ordered detained pursuant to 18 U.S.C. § 3142(e). On March 10, 2006, a hearing was held regarding the continued detention of Plaintiff (05-CR-6142, Doc. No. 25), and an Order of Detention Pending Trial was filed indicating there was a serious risk of danger to the safety of another person or the community should Plaintiff be released. (05-CR-6142, Doc. No. 26).

In a Superseding Indictment returned on August 10, 2006, while Plaintiff remained detained pending trial on the Indictment, Plaintiff was charged with criminal violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), felon in possession of a firearm (Count 1), and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), possession with intent to distribute cocaine (Count 2). (05-CR-6142, Doc. No. 48) ("Superseding Indictment"). Plaintiff was arraigned on the Superseding Indictment on August 11, 2006. (05-CR-6142, Doc. No. 50). In a Second Superseding Indictment filed August 24, 2006 (05-CR-6142, Doc. No. 51) ("Second Superseding Indictment"), charged Plaintiff with the same two criminal violations charged in the Superseding Indictment, as well as a third criminal violation of 21 U.S.C. § 924(c)(1), possession of a firearm in furtherance of a drug trafficking crime (Count 3). Plaintiff was arraigned on the Second Superseding Indictment on August 25, 2006. (05-CR-6142, Doc. No. 52).

On February 7, 2007, following a jury trial on the Second Superseding Indictment in United States District Court, Western District of New York, Plaintiff was acquitted of counts 2 and 3, but was convicted on Count 1 (felon in possession of a firearm), for which Plaintiff, on July 11, 2007, was sentenced to 120 months in prison. (05-CR-6142, Doc. No. 89). Plaintiff's acquittal on Count 2 and 3 are the basis for the instant action in which Plaintiff asserts two causes of action for false arrest and malicious prosecution.

On July 12, 2010, Defendants filed the instant motion seeking summary judgment (Doc. No. 30) ("Defendants' motion"), supported by the attached Defendants' Statement of Facts Not in Dispute Pursuant to Rule 56 ("Defendants' Statement of Facts"), the Declaration of Assistant Corporation Counsel Spencer L. Ash in Opposition to Plaintiff's Motion to Compel Discovery*fn3 and in Support of Defendants' Cross-Motion for Summary Judgment ("Ash Declaration"), Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Compel Discovery and in Support of Defendants' Cross-Motion for Summary Judgment ("Defendants' Memorandum"), and nine exhibits*fn4 ("Defendants' Exh(s). __").

On December 8, 2010, Plaintiff filed a crossmotion for summary judgment (Doc. No. 33) ("Plaintiff's motion"), supported by the attached exhibits A through F ("Plaintiff's Exh(s). __"). That same day, Plaintiff filed the Declaration of Sheldon J. English in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 34) ("Plaintiff's Response"). On December 9, 2010, Defendants filed Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 35) ("Defendants' Response"). Oral argument was deemed unnecessary.

Based on the following, summary judgment is GRANTED in favor of Defendants; and is DENIED as to Plaintiff.

DISCUSSION

Summary judgment on a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322.

Fed. R. Civ. P. 56(e) requires that When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. "[F]actual issues created solely by an affidavit ...


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