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Darlene Golden v. the County of Westchester

September 18, 2012

DARLENE GOLDEN, PLAINTIFF,
v.
THE COUNTY OF WESTCHESTER, WESTCHESTER DEPARTMENT OF PUBLIC SAFETY, WESTCHESTER POLICE DEPARTMENT, AND OFFICER GERARDO GIZZO, DEFENDANTS.



The opinion of the court was delivered by: Ramos, D.J.

OPINION AND ORDER

Plaintiff Darlene Golden was the only passenger in a car that Westchester County Police Officer Gerardo Gizzo pulled over on the Bronx River Parkway on November 30, 2007. Officer Gizzo determined that the driver of the car had an expired license, and before transporting the two away from the highway in his police vehicle, Officer Gizzo conducted a pat-down search of both the female driver and Ms. Golden. Ms. Golden brought this Section 1983 action against Officer Gizzo, the County of Westchester, its Public Safety Department, and its Police Department. She alleges that Officer Gizzo committed an unreasonable search in violation of her Fourth Amendment rights and that the municipal entities are liable for failing to properly hire, train, and supervise him. She also alleges violations of New York state law.

Defendants moved for summary judgment on all claims. The Court GRANTS Defendants summary judgment to Officer Gizzo and the County on the federal claims and declines to retain supplemental jurisdiction over the state law claims. The Court DISMISSES the Public Safety Department and the Police Department.

I. BACKGROUND

A. Facts

On November 30, 2007, at approximately 9:00 a.m., Darlene Golden was riding in a car on the Bronx River Parkway that her friend Sheniqua Smith was driving. See Def.'s Rule 56.1 Statement ¶¶ 1-3. Officer Gerardo Gizzo pulled the car over after Ms. Smith attempted to cross from the left lane of the three-lane highway to a right lane exit ramp. See id. ¶ 3. Officer Gizzo approached the vehicle, told Ms. Smith that he had pulled her over for the lane change, and asked for her identification. See id. ¶ 4. He returned to the police vehicle and came back to Ms. Smith's car about five to ten minutes later and told Ms. Smith that her license was expired. See id. ¶ 4.

Around this time, two other officers arrived on the scene. See id. at ¶¶ 4-5. Officer Gizzo testified that he determined that, because Ms. Smith did not have a valid license, he needed to impound the car. Declaration of Jane Hogan Felix in Support of Motion for Summary Judgment ("Felix Dec."), Ex. C, Part 2 at 56. Because the car was to be impounded, Officer Gizzo decided he needed "[t]o remove [Ms. Smith and Ms. Golden] from the highway to a safe area." Id., Ex. C, Part 3 at 95. He claims that the need to transport them in his police vehicle was the reason for his search. Def.'s Reply Mem. in Support of Summary Judgment at 2.

He had Ms. Smith step out of the car and searched her. Def.'s Rule 56.1 Statement ¶ 4. According to Ms. Smith, she asked about having a female officer perform the search, but got no response. Id., Ex. A at 24-25. He also had her take a breathalyzer test, which she passed. Id. at ¶ 5.

Officer Gizzo then asked Ms. Golden to step out of the car, to place her hands on the back of the car, and to remove her jacket. See id. at ¶¶ 5-6. He asked if he could search her jacket. See id. She consented, and he searched it. See id.

Officer Gizzo then searched her person. See id. Ms. Golden also asked if a female officer could perform the search, but also got no response. Felix Dec., Ex. B, Part 1 at 17.

Ms. Golden testified about the search at two separate depositions. In the first deposition, she described the search this way:

He had me stand up with my hands out. He search me up this way, went across my breast, came back that way. . . [t]hen he told me to put my hands on the back of the car, and he searched my bottom part. He went up my [ankles], came back up, touched my private part, went back down, told me to turn around, and he came down and searched the back of me.

Id., Ex. A, Part 2 at 22-23. In the second description, Ms. Golden provided a similar account:

He turns around. He touched my breasts, okay. He touched my [genital area] . . . He touched me from behind. He went all the way down, checked my ankles and everything. And I was standing.

Id., Ex. B, Part 1 at 16-17.

Officer Gizzo also testified that he conducted a "general pat-down with [his] hand" on Ms. Golden. Id., Ex. C, Part 3 at 75. He specifically denied touching her breasts or genitals. Id. at 78.

After searching Ms. Golden, Officer Gizzo escorted her and Ms. Smith to the back seat of his vehicle and drove them to the Fleetwood, New York train station. See Def.'s Rule 56.1 Statement ¶ 14; Compl. ¶ 30.

B. Procedural History

On November 29, 2011, Ms. Golden filed her Complaint. She named as Defendants Officer Gizzo and three municipal entities-the County of Westchester, its Public Safety Department, and its ...


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