The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Earl Hayes ("Plaintiff") brings this action against the County of Sullivan ("County"), the Sullivan County Sheriff's Department ("Sheriff's Department") (collectively, "County Defendants"), and individual Defendants Detective Jason Gorr ("Detective Gorr" or "Gorr"), Detective Don Starner ("Detective Starner" or "Starner"), Deputy Patrolman Richard Morgan ("Deputy Morgan" or "Morgan"), Colonel Harold Smith, Jr. ("Colonel Smith" or "Smith"), Lieutenant Cole ("Lieutenant Cole" or "Cole"), and Corporal Harry Gardner ("Corporal Gardner" or "Gardner") in their official and individual capacities (collectively, "Individual Defendants"), under 42 U.S.C. § 1983 ("§ 1983"). Plaintiff alleges that his federal constitutional rights were violated before and during his arrest on October 26, 2005, and in the court proceedings leading up to his guilty plea, which he entered on March 2, 2007. Plaintiff also alleges that his federal constitutional rights were violated during his incarceration at the Sullivan County Jail. Defendants have moved for summary judgment. For the reasons stated herein, the motions are granted in part and denied in part.
1. Plaintiff's Arrest Plaintiff was arrested on October 26, 2005 for driving with a suspended license and for possession of a forged instrument. (Aff. of Det. Jason Gorr in Supp. of Mot. for Summ. J. ("Gorr Aff.") ¶ 15.) The Parties dispute the chain of events which led to Plaintiff's arrest.*fn1
Defendants' version of the facts starts with the decision of Judge Burton Ledina, the Sullivan County Court judge who presided over Plaintiff's suppression hearing on December 21, 2006 and January 9, 2007. On February 9, 2007, Judge Ledina issued a nine-page decision, denying Plaintiff's suppression motion, and finding that Detective Gorr and Deputy Morgan had probable cause to arrest Plaintiff on October 26, 2005. See People v. Hayes, Indictment No. 13-2006 (N.Y. Cnty. Ct. Feb. 9, 2007) ("Suppression Order").
As found by Judge Ledina, on October 26, 2005, a security officer at the Wal-Mart store in the town of Thompson contacted Detective Starner of the Sullivan County Sheriff's Department, and informed him that an individual had attempted to purchase a cell phone using a credit card where the name printed on the front of the card did not match the name which appeared on the register receipt after the card was scanned. (Suppression Order 2; Statement of Material Facts Pursuant to S.D.N.Y. Civ. R. 56.1 ("Indiv. Defs.' 56.1") ¶¶ 15-16; Aff. of Det. Don A. Starner in Supp. of Mot. for Summ. J. ("Starner Aff.") ¶¶ 8-9.) The name printed on the front of the card was "Earl Hayes," but the name which appeared on the receipt was "Joblanski Samuels." (Suppression Order 2; Indiv. Defs.' 56.1 ¶ 16; Gorr Aff. ¶ 15.) Starner requested that Detective Gorr, also of the Sullivan County Sheriff's Department, respond to the call. (Indiv. Defs.' 56.1 ¶ 17; Starner Aff.¶ 10.) Upon arrival at the Wal-Mart, Gorr met with Joe Brown, a Wal-Mart loss prevention associate, who showed him a copy of the receipt bearing the name Joblanski Samuels. (Suppression Order 2; Gorr Aff. ¶ 15.)*fn2 During this meeting, Gorr and Brown were advised that the individual had re-entered the store and was purchasing a laptop computer. (Suppression Order 2; Indiv. Defs.' 56.1 ¶ 18.) Using the store's video surveillance equipment, security personnel pointed out the individual, Plaintiff Earl Hayes, to Gorr. (Id.) Gorr followed Plaintiff out of the store and observed him place the laptop in the trunk of a car and open the driver's side door. (Suppression Order 2; Gorr Aff. ¶ 15; Indiv. Defs.' 56.1 ¶ 19.) Gorr then approached Plaintiff, identified himself, and told Plaintiff that he wanted to speak to him regarding the credit card Plaintiff had used in the Wal-Mart. (Suppression Order 2; Gorr Aff. ¶ 15.) Gorr asked Plaintiff for identification and Plaintiff produced a New York State identification card in the name of Earl Hayes. Suppression Order 2-3. According to Gorr, Plaintiff explained that there had been a problem with the cashier and produced several credit cards, identifying a Pay Pal card as the one he had used in the store. (Suppression Order 3; Gorr Aff. ¶ 15; Indiv. Defs.' 56.1 ¶ 23.)*fn3 While Gorr was speaking to Plaintiff in the parking lot, Deputy Morgan, of the Sullivan County Sheriff's Department, arrived as back-up. (Suppression Order 3; Aff. of Richard Morgan in Supp. of Mot. for Summ. J. ("Morgan Aff.") ¶¶ 6-8.) Deputy Morgan ran a check of Plaintiff's driver's license and it came back over the radio that Plaintiff's license was suspended. (Indiv. Defs.' 56.1 ¶ 24; Suppression Hr'g Tr. 19:20-25, 138:13-20, 141:4-7, Dec. 21, 2006.) According to Defendants, Plaintiff then told Gorr and Morgan that he had not driven the car and that a friend named "Mark" had driven him to the Wal-Mart. (Suppression Order 3; Indiv. Defs.' 56.1 ¶ 25; Gorr Aff. ¶ 15; Morgan Aff. ¶ 10.) Gorr asked Morgan to enter the Wal-Mart and page Mark. (Indiv. Defs.' 56.1 ¶ 25; Morgan Aff. ¶ 11.) According to Morgan, Mark was paged twice by store personnel and never appeared. (Morgan Aff. ¶¶ 12-13.)
According to Gorr, Plaintiff then used his cell phone to call his then-fiancee Dina Tomlinson ("Tomlinson"), who was listed as the owner of the car. Gorr claims that he asked to speak with Tomlinson and she informed Gorr that Plaintiff had been alone in the car when he left her. (Suppression Order 3; Indiv. Defs.' 56.1 ¶¶ 26-27; Gorr Aff. ¶ 15.) Gorr and Plaintiff then went into the Wal-Mart and Plaintiff stayed with Morgan while Gorr entered the store's security office to watch surveillance videos of the parking lot. Suppression Order 3. According to Gorr, the surveillance videos showed Plaintiff parking the vehicle and walking into the Wal-Mart store alone. (Suppression Order 3; Indiv. Defs.' 56.1 ¶ 28; Gorr Aff. ¶ 15.)*fn4 Gorr then arrested Plaintiff for driving with a suspended license and for possession of a forged instrument (the credit card). (Suppression Order 3; Indiv. Defs.' 56.1 ¶ 30; Gorr Aff. ¶ 15.) Plaintiff was searched and several items including papers, an activation slip, shopping cards, gift cards, and credit cards were found on his person. (Suppression Order 3-4; Indiv. Defs.' 56.1 ¶ 31; Gorr Aff. ¶ 15; Suppression Hr'g Tr. 27:3-31:8, Dec. 21, 2006.) Tomlinson arrived to claim her car and denied ownership of the items in the car. She granted Gorr her written consent to search the car and pursuant to the search, Gorr found two laptops (one that was turned on and the one that had just been purchased and placed in the trunk), a phone, and various documents and receipts. (Suppression Order 4; Indiv. Defs.' 56.1 ¶¶ 32-33; Gorr Aff. ¶ 15; Suppression Hr'g Tr. 33:3-37:2, Dec. 21, 2006.)
Plaintiff, however, presents a very different version of the events leading up to his arrest. According to Plaintiff, the Wal-Mart parking lot encounter with Detective Gorr began at approximately 2:00 pm on October 26, 2005. (Pl.'s Aff. in Opp'n to [Indiv.] Defs.' Mot. For Summ. J. ("Pl.'s Aff. in Opp'n to Indiv. Defs.") ¶ 11.) Gorr approached Plaintiff, identified himself, and asked Plaintiff to produce identification. (Id. ¶ 12.) Plaintiff then handed Gorr his Department of Motor Vehicles-issued identification card. (Id.) Plaintiff claims that Gorr then demanded that Plaintiff empty his pockets, which Plaintiff refused to do, and that Plaintiff asked for his identification back. (Id.) When Gorr allegedly refused to return Plaintiff's identification, Plaintiff claims that he attempted to walk away from Gorr and leave the parking lot. (Id.) According to Plaintiff, Gorr then grabbed him, struck him in the chest, and refused to let him leave. (Id.) Gorr then allegedly removed all the property from Plaintiff's pockets, including six credit cards, and asked Plaintiff which card he had attempted to use in the Wal-Mart. (Id.) Plaintiff claims he refused to answer Gorr, who asked Morgan to "hold" Plaintiff while Gorr entered the Wal-Mart alone. (Id.) Approximately 15 to 20 minutes later, Gorr returned to the parking lot and told Plaintiff that his driver's license was suspended. (Id.) Plaintiff claims that he denied driving to the Wal-Mart, and that Morgan continued to hold Plaintiff while Gorr again went back into the Wal-Mart for approximately 20 minutes. (Id.) Plaintiff claims that when Gorr returned, he placed Plaintiff under arrest for aggravated unlicensed operation of a motor vehicle. (Id.)*fn5
Gorr denies hitting Plaintiff in the chest (Gorr Aff. ¶ 9), and claims that he did not touch Plaintiff other than when he arrested Plaintiff, (Suppression Hr'g Tr. 61:12-15, Dec. 21, 2006). Gorr also claims that Plaintiff never said he wanted to leave and that Gorr never told Plaintiff that he was not free to leave before he was arrested. (Suppression Hr'g Tr. 60:4-11, 61:8-18, 65:3-23, Dec. 21, 2006.)
After Plaintiff's arrest, Detective Starner prepared a search warrant application for Plaintiff's residence, which was granted by Judge Ledina. (Suppression Order 4; Indiv. Defs.' 56.1 ¶¶ 34-35; Starner Aff. ¶¶ 13-15.) A search of Plaintiff's residence pursuant to that warrant produced "substantial evidence of credit card forgery," including blank credit cards, a device for cloning credit cards, a computer with credit card information for other people, a number of fake driver's licenses from other states, and sheets of paper with credit card numbers from USAA Bank. (Starner Aff. ¶ 17.)
2. Plaintiff's Criminal Proceedings Plaintiff was charged on January 11, 2006 in a twenty-nine count indictment, which included thirteen counts of criminal possession of a forged instrument in the second degree, seven counts of unlawful possession of personal identification information in the second degree, one count of grand larceny in the fourth degree, one count of criminal possession of stolen property in the third degree, two counts of identity theft in the third degree, three counts of identity theft in the second degree, one count of scheme to defraud in the first degree, and one count of aggravated unlicensed operation of a motor vehicle in the second degree. (Indiv. Defs.' 56.1 ¶ 37; People v. Hayes, Indictment No. 13-2006, 1-2 (N.Y. Cnty. Ct. Oct. 24, 2006) ("Hayes Order (Oct. 24, 2006)").)
Plaintiff's criminal case was assigned to Judge Ledina, in the Sullivan County Court. Plaintiff was represented by private counsel, Mr. Deveraux L. Cannick, during his criminal proceedings. (Indiv. Defs.' 56.1 ¶ 38.)*fn6 On August 25, 2006, Plaintiff's counsel filed an omnibus motion with the County Court seeking to have the indictment dismissed and seeking several pre-trial hearings. (Id. ¶ 39; Hayes Order 2(Oct. 24, 2006).) On October 24, 2006, Judge Ledina dismissed several counts of the indictment, scheduled a Mapp/Dunaway hearing for the possible suppression of seized evidence, and scheduled a Huntley hearing for the possible suppression of post-arrest statements ("suppression hearing"). (Indiv. Defs.' 56.1 ¶ 40; Hayes Order 5-7(Oct. 24, 2006).)
The suppression hearing was held on December 21, 2006 and January 9, 2007. (Indiv. Defs.' 56.1 ¶ 41.) Gorr, Starner, and Morgan testified at the suppression hearing on December 21, 2006, while Plaintiff called one witness, Tressa Evans, to testify on January 9, 2007. Mr. Cannick, Plaintiff's counsel, had the opportunity to cross examine Gorr, Starner, and Morgan. (Suppression Hr'g Tr., Dec. 21, 2006.) On January 31, 2007, Mr. Cannick submitted an affirmation in support of the suppression motion, arguing that Plaintiff "was arrested without probable cause and all items seized from him subsequent to that illegal arrest must be suppressed as 'fruits of the poisonous tree.'" (Affirmation in Supp. of Suppression Mot., unnumbered page 1 (Jan. 31, 2007).) Mr. Cannick highlighted alleged discrepancies in the testimony of Gorr, Starner and Morgan, and argued that contrary to Gorr's testimony, the Wal-Mart video clips did not show Plaintiff driving the car. (Id. at unnumbered pages 1-3.) He also argued for the suppression of Plaintiff's post-arrest statements (id. at unnumbered page 1), but did not challenge the validity of the search warrant used to search Plaintiff's residence.
On February 9, 2007, Judge Ledina denied Plaintiff's motion to suppress and held that Detective Gorr had probable cause to arrest Plaintiff on October 26, 2005. Suppression Order 2, 7-8. Judge Ledina found:
The defendant argues that there was no probable cause for the arrest, and that the seized evidence incidental thereto must be suppressed. He maintains that there was no probable cause for the arrest for unlicensed operation because Detective Gorr had never seen him driving, either directly, or in the store video tapes.
However, prior to the arrest for unlicensed operation, Detective Gorr had observed Defendant put purchases in the car and walk up to and open the driver's door. The defendant's story about having been driven to the store by Mark proved to be disingenuous. Mark never appeared, and Dina Tomlinson, the owner of the car, informed Detective Gorr that the defendant had left her alone in her vehicle. Finally, the Wal-Mart video showed an individual wearing a dark jacket with a distinctive white stripe on the sleeve exit the car, and no one else.
The defendant was wearing a dark jacket with a white stripe on the sleeve. There is thus more than ample probable cause to have arrested defendant for operating a vehicle with a suspended license.
There was also ample probable cause to have arrested the defendant on the charge of possession of a forged credit card. The initial call from the store security department indicated that a card bearing the name of Earl Hayes had been rejected. The defendant was identified as having attempted to use the card in question, and admitted such use when questioned. He showed the detective the card with "Earl Hayes" named on the front as the cardholder, but the store printout showed that the card had been issued to one Joblanski Samuels.
Suppression Order 4-5. Judge Ledina thus ruled that all of the items seized from Plaintiff's person and from Tomlinson's vehicle would be admissible at trial, as would Plaintiff's pre- and post-arrest statements. Suppression Order 6-8. Judge Ledina also ruled that although Plaintiff did not challenge the validity of the search warrant used to search his home, to the extent that the issue was raised at the suppression hearing, "defendant has not presented any evidence showing that the warrant was improperly issued or executed," and thus "the evidence seized thereunder is admissible." Suppression Order 9.
On March 2, 2007, Plaintiff pleaded guilty to three counts of criminal possession of a forged instrument in the second degree, one count of criminal possession of stolen property in the third degree, one count of a scheme to defraud, and one count of identity theft in the second degree. (Indiv. Defs.' 56.1 ¶ 45; Plea Tr. 6:8-7:11, 26:5-27:24, Mar. 2, 2007.) This plea was entered into by Plaintiff in full satisfaction of the indictment and with the understanding that Plaintiff would be sentenced to imprisonment for five and a half to eleven years. (Plea Tr. 2:10-19.) As part of the plea agreement, and in consideration for the dismissal of the other eighteen counts of the indictment, Plaintiff agreed to waive his right to appeal. (Id. at2:20-4:8.)
At the plea colloquy, Judge Ledina informed Plaintiff of the constitutional rights that he would be foregoing by pleading guilty, and confirmed that Plaintiff understood the implications of his guilty plea. (Id. at 7:8-13:9.) Specifically, Judge Ledina informed Plaintiff that he would be giving up his right "to challenge the conduct of police officers in connection with obtaining evidence" (id. at 11:12-16), would be giving up the right to appeal his conviction to a higher court (id. at 11:17-12:18), and would "be foreclosed forever from complaining of any errors that might have occurred from the date of the crime involved right through to the time of sentencing," (id. at 12:19-13:1). Plaintiff indicated that he understood Judge Ledina and was entering into the plea agreement and waiver of right to appeal of his own free will. (Id. at 10:4- 13:9.)*fn7 After having Plaintiff describe, in his own words, what he had done in relation to each count to which he was pleading guilty, Judge Ledina accepted Plaintiff's guilty plea. (Id. at 13:10-31:17.)
On April 25, 2007, the date set for sentencing, Plaintiff submitted a pro se motion to withdraw his guilty plea, claiming ineffective assistance of counsel. (Indiv. Defs.' 56.1 ¶ 49; People v. Hayes, Indictment No. 13-2006, 1-2 (N.Y. Cnty. Ct. Aug. 17, 2007) ("Order Denying Motion to Withdraw Plea").) Plaintiff claimed that his counsel was ineffective for his handling of the suppression hearing, so Judge Ledina allowed Mr. Cannick to withdraw as counsel. Order Denying Motion to Withdraw Plea 2. The court assigned another attorney, Ms. Donna Lasher, to assist Plaintiff in preparing his reply to the District Attorney's response to his motion. (Indiv. Defs.' 56.1 ¶ 49; Order Denying Motion to Withdraw Plea 2.) Judge Ledina found that Plaintiff's claims against Mr. Cannick were "based for the most part on [Plaintiff's] unsupported allegations of events that were gone into and determined against him at the suppression hearing," and that nevertheless at the plea hearing, Plaintiff swore that he had discussed the plea with counsel and was satisfied with his counsel's services. Order Denying Motion to Withdraw Plea 4. Judge Ledina also found significant that "during the plea colloquy, [Plaintiff] specifically waived his right to challenge the conduct of the police in collecting evidence against him," admitted his guilt, and at no time since then, had he claimed innocence. Id. at 4-5. "Rather, [Plaintiff] . . . argued that he might have a defense of illegal search and seizure." Id. at 5. Judge Ledina denied Plaintiff's motion to withdraw his guilty plea, finding nothing in the record to indicate that counsel was ineffective in connection with the plea process. Id. at 4-5.
Plaintiff was sentenced before Judge Ledina on August 28, 2007. (Sentencing Tr., Aug. 28, 2007.) At the sentencing, during which Plaintiff was represented by Ms. Lasher, Plaintiff accused Gorr of having committed perjury at the suppression hearing (id. at 12:22-13:23, 15:8-17), accused the prosecutor, Mr. James R. Farrell, and Judge Ledina of taking no action regarding Gorr's alleged perjury (id. at 15:18-16:21), and accused Mr. Cannick of lying and not carrying out his responsibilities as a defense attorney, (id. at 16:22-27:20). Judge Ledina, having already denied Plaintiff's motion to withdraw his guilty plea, sentenced Plaintiff to a term of imprisonment of five and half to eleven years, in accordance with the negotiated plea bargain and sentencing agreement. (Id. at 33:5-8.)
On October 16, 2007, Plaintiff moved pursuant to New York Criminal Procedure Law § 440.10 (§ 440.10) to vacate his judgment of conviction, claiming fraud and ineffective assistance of counsel. Judge Ledina ruled that §440.10(1)(b), which requires a judgment to be vacated where it was "procured by duress, misrepresentation or fraud on the part of the court or a prosecutor," was inapplicable because Plaintiff provided no evidence of such duress, misrepresentation, or fraud. People v. Hayes, Indictment No. 13-2006, 2 (N.Y. Cnty. Ct. Jan. 9, 2008) ("Order Denying §440.10 Motion"). Judge Ledina also noted that Plaintiff had waived his right to challenge the result of the suppression hearing, that such a right is waivable, and that it was "knowingly and voluntarily" waived. Id. at 5. Regarding Plaintiff's ineffective assistance of counsel claim, Judge Ledina ruled that Plaintiff had previously raised, and the court had previously denied, the same arguments in Plaintiff's motion to withdraw his guilty plea.
Id. at 2-4. Therefore, because "the record clearly indicates that there was no ineffectiveness of counsel connected with the plea process," and because Plaintiff knowingly and voluntarily waived his right to challenge the actions of police with respect to their obtaining evidence, Judge Ledina denied Plaintiff's § 440.10 motion. Id. at 4-5.*fn8
On January 9, 2008, Plaintiff filed a motion requesting that the Judge Ledina recuse himself from deciding his § 440.10 motion and that the action be transferred to the Bronx or New York County Supreme Court, and, on January 28, 2008, Plaintiff moved to reargue/renew the court's denial of his § 440.10 motion. Judge Ledina addressed both motions in an order dated April 2, 2008. Judge Ledina declined to recuse himself or transfer the case, finding that there had been neither impropriety nor the appearance of impropriety in any of the court's rulings. People v. Hayes, Indictment No. 13-2006, 4 (N.Y. Cnty. Ct. Apr. 2, 2008) ("Order Denying Recusal/Reconsideration"). "That some rulings were made against [Plaintiff] does not show that the Court was partial, the rulings having been made on the basis of applicable law and procedure." Id. at 3-4. Judge Ledina then denied Plaintiff's motion for reargument/renewal of his § 440.10 motion as without merit, as Plaintiff made the same arguments he had previously made, and there was "no showing that the Court misapprehended the law or misapplied the facts in its prior decision." Id. at 4-5.
On December 5, 2008, Plaintiff again moved the County Court under § 440.10, alleging that the prosecution presented false testimony at the suppression hearing. Plaintiff also asked the court again to recuse. Judge Ledina denied both requests in an Order dated April 8, 2009. Judge Ledina again highlighted, as he had at length in the first § 440.10 decision, that Plaintiff knowingly waived his right to appeal, which included all grounds for appeal that could be validly waived. People v. Hayes, Indictment No. 13-2006, 3 (N.Y. Cnty. Ct. Apr. 8, 2009) ("Second Order Denying § 440.10 Motion"). Plaintiff's waiver of rights included the waiver of the right to challenge his conviction under § 440.10, and also the waiver of the right to challenge the outcome of the suppression hearing. Id. Judge Ledina also rejected Plaintiff's ineffective assistance of counsel argument for the same reasons he had rejected it previously in denying Plaintiff's motion to withdraw his guilty plea, Plaintiff's initial § 440.10 motion, and Plaintiff's motion for reargument of the denial of his initial § 440.10 motion. Id. at 3-4.
Although Plaintiff had waived his right to appeal, he filed an appeal with the Appellate Division challenging the County Court's denial of his motion to withdraw his guilty plea and his sentencing on August 28, 2007. People v. Hayes, 896 N.Y.S.2d 225 (App. Div. 2010). The Appellate Division held that "[a]s a result of his knowing, voluntary and intelligent waiver of his right to appeal, [Plaintiff] has given up his right to challenge the County Court's ruling on his suppression motion." Id. at 227 (citations omitted). The court found no support in the record for Plaintiff's contention that the waiver was the result of coercion, "particularly considering the court's thorough colloquy and [Plaintiff's] affirmative statements that he had discussed the waiver with counsel and that he agreed to it of his own free will." Id. The Appellate Division also rejected Plaintiff's ineffective assistance of counsel claim, finding that the record before it indicated that he had received "meaningful representation." Id. The Appellate Division affirmed the judgment below.*fn9 Plaintiff sought leave to appeal the judgment of the Appellate Division to the New York Court of Appeals several times. The New York Court of Appeals denied him leave to appeal on September 3, 2010, People v. Hayes, 935 N.E.2d 821 (Table) (N.Y. 2010), November 30, 2010, People v. Hayes, 939 N.E.2d 813 (Table) (N.Y. 2010), and August 19, 2011, People v. Hayes, 954 N.E.2d 96 (Table) (N.Y. 2011).
a. Plaintiff's Complaint About Gorr Plaintiff was incarcerated at the Sullivan County Jail from October 27, 2005 until August 31, 2007, when he was transferred to the Downstate Correctional Facility after his August 28, 2007 sentencing. (Aff. of Col. Harold L. Smith, Jr. in Supp. of Mot. for Summ. J. ("Smith Aff., Indiv. Defs.") ¶ 12.) Plaintiff claims that when he arrived at the Sullivan County Jail on October 26, 2005, he told an unidentified officer that he had been assaulted by Detective Gorr and wanted to file a formal complaint and press an assault charge. (Compl., Hayes v. Gorr, No. 09-CV-2071 ("Gorr Compl.") ¶ 15.) Plaintiff claims he was ignored and placed in a holding cell. (Id. ¶ 16.) According to Plaintiff, on October 27, 2005, after he began experiencing sharp pains in his chest, broke out in a cold sweat, and had numbness in his extremities, he was taken to the Catskill Regional Medical Center in Harris, New York. (Id. ...