The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Defendants Detective John Maloney ("Det. Maloney"), Officer Sean Daley ("Officer Daley"), and Detective Eric Peters ("Det. Peters") (collectively "individual defendants") moved for summary judgment. Subsequently, defendant City of Schenectady ("City") moved to dismiss for failure to state a claim. In response, plaintiff Jonathan Gonzalez ("plaintiff" or "Gonzalez") withdrew his state law claims of negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, as well as all official capacity claims against the individual defendants. Otherwise, plaintiff opposed the motions. Oral argument was heard on November 9, 2011, in Utica, New York. Decision was reserved.
The incident that gave rise to this civil rights lawsuit occurred tangentially to a buy-bust operation being conducted on May 16, 2006, by City police officers. The buy-bust operation had been set up in restaurant parking lot in the City. This particular restaurant parking lot was known for frequent illegal drug sales. The police officers were using a Confidential Informant ("CI") equipped with a wire to transmit conversations, with the goal of apprehending drug dealers*fn1 who might approach the CI. The CI, a known drug user, and her boyfriend were hanging out in the parking lot. Gonzalez, who was acquainted with the boyfriend, approached him and the CI. He asked them: "What do you need? I can get you whatever you need." They replied that they were all set, and plaintiff walked away.
Detective Cowell, a member of the vice squad but not named as a defendant, was monitoring the CI's wire and therefore heard the exchange with the plaintiff. Det. Maloney and Det. Daley, also members of the vice squad, observed the interaction between Gonzalez, the CI, and her boyfriend. Upon hearing the CI's conversation with plaintiff, Detective Cowell radioed the other members of the vice squad that Gonzalez had attempted to sell drugs to the CI. Officer Peters and Officer Dashnow were instructed to and they did arrest plaintiff, for attempted criminal sale of a controlled substance. The officers patted him down but did not recover any contraband or weapon. They then handcuffed him and took him to police headquarters.
At police headquarters, Det. Maloney and Officer Peters conducted a strip search, including a visual cavity search of Gonzalez. The search was conducted pursuant to the Police Department Policy, effective since 1999, which provided that an arrestee charged with a felony or offense involving weapons or contraband may be strip/body cavity searched if there was reasonable suspicion that the arrestee may be secreting contraband.
During the search a plastic bag was seen protruding from plaintiff's buttocks. According to defendants, Gonzalez himself removed the bag from his buttocks. According to plaintiff, one of the officers removed the bag from his buttocks. In any event, when the bag was removed, Gonzalez stated "you got me on possession." The bag contained crack cocaine. Plaintiff was charged in state court with criminal possession of a controlled substance.
Gonzalez moved to suppress the evidence as the fruit of an illegal cavity search. The state trial court held a hearing and denied the motion. Davignon Aff. Ex. E at 5 (Dkt. No. 25- 6).*fn2 The trial court stated that the evidence was procured during "a lawfully conducted strip search." Id. A jury found Gonzalez guilty of criminal possession of a controlled substance. He was sentenced to two and one-half years in state prison followed by two years of post-release supervision.
Plaintiff appealed his conviction. On December 24, 2008, the New York State Appellate Division Third Department reversed plaintiff's conviction, finding that the heightened standard for reasonable suspicion to justify a visual cavity search had not been met. People v. Gonzalez, 57 A.D.3d 1220, 1222 (N.Y. Sup. Ct. App. Div. 3d Dep't 2008). Apparently Gonzalez was then released from prison.
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S. Ct. at 1356. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at 2511; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict ...