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Boans v. Town of Cheektowaga Police Dep't.

United States District Court, W.D. New York

March 14, 2014

RUDOLPHUS BOANS, JR., Plaintiff,
v.
TOWN OF CHEEKTOWAGA, TOWN OF CHEEKTOWAGA POLICE DEPARTMENT, and POLICE OFFICERS BRIAN R. GRAY and JAMES DAVIS, Defendants

Order Filed: December 4, 2013

Page 365

[Copyrighted Material Omitted]

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For Rudolphus Boans, Jr., Plaintiff: James Ostrowski, LEAD ATTORNEY, Buffalo, NY.

For Town of Cheektowaga, Town of Cheektowaga Police, Police Officer Brian R. Gray, Defendants: Marylou Kathryn Roshia, LEAD ATTORNEY, Damon Morey LLP, Buffalo, NY.

For Town of Cheektowaga, Town of Cheektowaga Police Department, Police Officer Brian R. Gray, Cross Claimants: Marylou Kathryn Roshia, LEAD ATTORNEY, Damon Morey LLP, Buffalo, NY.

OPINION

Page 367

DECISION AND ORDER

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE.

The instant matter was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1) for supervision of all pre-trial proceedings. On June 29, 2012, defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 32) On December 4, 2013, Magistrate Judge Foschio issued a detailed and comprehensive 36-page Report and Recommendation recommending that defendants' motion for summary judgment be granted as to: (1) plaintiff's Section 1983 claims against the Town of Cheektowaga and the Town of Cheektowaga Police Department; (2) plaintiff's claims pursuant to the Seventh Amendment and Eighth Amendment; (3) plaintiff's Section 1983 and common law malicious prosecution claims; and (4) plaintiff's substantive due process claims under the Fifth Amendment and Fourteenth Amendment. (Dkt. No. 40) Magistrate Judge Foschio recommended that summary judgment be denied as to plaintiff's Fourth Amendment and common law unlawful arrest claims. Id.

Plaintiff filed objections to Magistrate Judge Foschio's Report and Recommendation on December 18, 2013. (Dkt. No. 41) Defendants filed a reply on January 2, 2014. (Dkt. No. 42) Oral argument was held on February 27, 2014, at which time the Court considered the matter submitted.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon de novo review, and after reviewing the submissions from the parties and hearing oral argument, the Court hereby adopts Magistrate Judge Foschio's findings in their entirety.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motion for summary judgment is denied as to plaintiff's Fourth Amendment and common law unlawful arrest claims, but granted as to all other claims.

The matter is referred back to Magistrate Judge Foschio for further proceedings.

SO ORDERED.

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REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on September 2, 2009, for all pre-trial matters, including preparation of a Report and Recommendation on dispositive motions. The matter is presently before the court on Defendants' First Motion for Summary Judgment (Doc. No. 32), filed June 29, 2012.

BACKGROUND

Plaintiff Rudolphus Boans, Jr. (" Plaintiff" or " Boans" ), commenced this civil rights action on December 12, 2008, by filing a complaint in New York Supreme Court, Erie County, alleging Defendants Town of Cheektowaga (" Town" ), Town of Cheektowaga Police Department (" Cheektowaga police" or " police" ), and Cheektowaga Police Officer Brian R. Gray (" Officer Gray" ) (" Defendants" ), subjected Plaintiff to false arrest, unlawful arrest, unlawful imprisonment, and malicious prosecution in violation of New York law, and deprivation of liberty in violation of Plaintiff's rights under the Fourth, Fifth, Seventh, Eighth, and Fourteenth Amendments.[1] Plaintiff's claims arise from a September 15, 2007 motor vehicle accident (" the accident" ), in which Plaintiff, while seated at the wheel of his vehicle in the drive-thru lane of a McDonald's restaurant located in Cheektowaga, New York, was struck by a rental vehicle driven by one James Davis (" Davis" ). Because the damage to Plaintiff's vehicle rendered the vehicle unable to be driven, a tow truck was called and an inventory search prior to towing the vehicle yielded contraband, for which Plaintiff was arrested and prosecuted, with the criminal action dismissed prior to trial. On January 12, 2009, Defendants removed the action to this court citing 28 U.S.C. § § 1331, 1441, and 1443 as the basis for subject matter jurisdiction. On August 27, 2009, Defendants filed their answer (Doc. No. 14) (" Answer" ), asserting, pursuant to N.Y. Civ.Prac.L.& R. Art. 1400, cross-claims for contribution against James E. Davis (" Davis" ), Locke Leasing, LLC, Sovran Self Storage, Inc., Sovran Acquisition Limited Partnership, and Sovran Holdings, Inc., who had been named as defendants to this action, yet dismissed.

On June 29, 2012, Defendants filed a motion for summary judgment (Doc. No. 32) (" Defendants' Motion" ), seeking to dismiss

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the Complaint. Defendants' Motion is supported by the attached Affidavit of Marylou K. Roshia, Esq. (Doc. No. 32-1) (" Roshia Affidavit" ), exhibits A through L (Doc. No. 32-2) (" Defendants' Exh(s). " ), the Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. No. 32-3) (" Defendants' Memorandum" ), and Rule 56 Statement (Doc. No. 32-4) (" Defendants' Rule 56 Statement" ). In opposition to summary judgment, Plaintiff filed on August 31, 2012, Plaintiff's Memorandum of Law in Opposition to Summary Judgment (Doc. No. 35) (" Plaintiff's Memorandum" ), and Plaintiff's Rule 56 Statement (Doc. No. 36) (" Plaintiff's Rule 56 Statement" ), and, on September 12, 2012, Plaintiff's Affidavit in Opposition to Summary Judgment (Doc. No. 38) (" Plaintiff's Affidavit" ). On September 14, 2012, Defendants filed the Reply Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. No. 39) (" Defendants' Reply" ). Oral argument was deemed unnecessary.

Based on the following, Defendants' Motion should be GRANTED in part and DENIED in part.

FACTS[2]

On September 15, 2007, at 12:30 A.M., Plaintiff Rudolphus Boans, Jr. (" Plaintiff" or " Boans" ), seated in the driver's seat of his vehicle (" Plaintiff's vehicle" ), with one Gale Matthews-Benson (" Matthews-Benson" ), in the front passenger seat, was in the drive-thru lane of a McDonald's restaurant located at 1735 Walden Avenue, in Cheektowaga, New York, when James E. Davis (" Davis" ), operating a van owned and leased from Uncle Bob's Storage (" Davis's vehicle" ), struck the passenger side of Plaintiff's vehicle, causing extensive damage and rendering Plaintiff's vehicle inoperable. Cheektowaga police were contacted and Officers Gray and Spieler[3] responded to the scene of the accident. Officer Gray detected the scent of alcohol on Davis's breath, and Davis admitted he had been drinking. Officer Gray requested identification from Davis, who advised he had given his wallet, containing his driver's license, social security card, bank debit card, and personal papers, as well as the keys to his vehicle to Plaintiff and Matthews-Benson who had requested them because of the collision. Officer Spieler asked Plaintiff and Matthews-Benson for Davis's property, but Plaintiff and Matthews-Benson denied having them. Davis's vehicle and his person were searched by Officers Gray and Spieler both at the scene of the accident and, later, at the Cheektowaga Police Station, but Davis's property was not found, nor was the property located by a search of the restaurant's parking lot and dumpster. Davis stated to the police he wanted Plaintiff and Matthews-Benson prosecuted for theft of his property.

Because Plaintiff's vehicle was inoperable, a tow truck was called and, pursuant to Cheektowaga Police General Order O-5-8 (Towing and Impounding) policy (" Tow Policy" ),[4] Officers Gray and Spieler conducted an inventory search of Plaintiff's vehicle before it was towed. As relevant, the Tow Policy provides the Cheektowaga police " may direct the removal of . . . [d]isabled vehicles at the scene of an accident upon a public roadway." Tow Policy, Circumstances. Further, where the " [v]ehicle is not being towed pursuant to an arrest or

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a violation of law or statute or for police investigation," the vehicle's driver or owner shall not be prohibited " from contracting with any tow company of his choice." Id. Further,

An inventory will be conducted on all vehicles towed at the direction of a police officer unless a vehicle is to be . . . privately towed . . .. The inventory will be conducted on scene, before the vehicle is towed, unless safety concerns dictate otherwise.

Id., Inventory ¶ 1.

The Tow Policy also specifically provides that in conducting an inventory search of a vehicle in preparation for towing, " [a]ll closed unlocked containers will be opened and inventoried." Id., Inventory ¶ 4. It is undisputed that Plaintiff's vehicle was to be towed because it was disabled, and that Plaintiff was not invited by any police officer to make his own arrangements for the vehicle's tow.

According to the Police Report prepared by Officer Gray (" Police Report" ),[5] during the inventory search of Plaintiff's vehicle, Officer Spieler found in the vehicle's glove compartment a prescription medication bottle, for which the label indicated the contents were 600 milligrams of ibuprofen prescribed for Plaintiff. When the prescription bottle was found, Plaintiff and Matthews-Benson became agitated, and yelled at the police officers that they had no right to search Plaintiff's vehicle, asserting Plaintiff and Matthews-Benson were activists and that the police officers were violating their civil rights, to which the police officers explained they were conducting an inventory search of Plaintiff's vehicle in preparation for its tow, which was in accordance with the Tow Policy. The disruptive behavior of Boans and Matthews-Benson prompted Officer Gray to contact Sergeant Grant in anticipation of further difficulties dealing with Boans and Matthews-Benson. Meanwhile, Davis continued to insist to Officer Spieler that Davis wanted Boans and Matthews-Benson to be prosecuted for taking Davis's personal property. Sergeant Grant arrived and advised Boans and Matthews-Benson that it was necessary for them to return Davis's property to Davis. When Boans and Matthews-Benson continued to insist they did not have Davis's property, Boans was placed in custody and transported to Cheektowaga Police Headquarters (" Police Headquarters" ). Matthews-Benson, who was not arrested at the same time, remained at the scene of the accident.

The Police Report also states that at Police Headquarters, Detention Officer W. Hay (" Officer Hay" ), conducted intake of Plaintiff who placed into his personal property box Plaintiff's own property, as well as the key to the ignition of Davis's vehicle. Officer Gray noticed the key and questioned Plaintiff about it, and Plaintiff denied being aware the key to Davis's vehicle was in Plaintiff's possession. Also during intake, the prescription bottle that Officer Spieler discovered in the glove compartment of Plaintiff's vehicle was opened and its contents examined. In addition to the ibuprofen, the bottle contained three Lortab tablets, containing hydrocodone, a controlled substance. Matthews-Benson was then arrested and transported to Police Headquarters.

Meanwhile, because the disruptive behavior of Plaintiff and Matthews-Benson had prevented completion of the inventory search of Plaintiff's vehicle at the accident scene, Plaintiff's vehicle was towed to Davron Collision's Tow Lt (" the tow lot" ), where the inventory search was completed

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by Police Officer E. DeVincentis (" Officer DeVincentis" ), who found a wallet wedged between the dashboard and the " A-pillar," i.e., the frame surrounding the vehicle's front windshield. Officer DeVincentis notified Officer Gray of the discovery, and Officer Gray responded to the tow lot and photographed the wallet before removing it from the dashboard.[6] Officer Gray returned to Police Headquarters where Davis positively identified the wallet as his, and the wallet was returned to Davis. After Plaintiff was processed at police headquarters, he was transported to the Erie County Holding center, where he was held for three days.

A statement given by Davis was taken by Officer Spieler (" Davis's Statement" ).[7] According to Davis, following the accident, Davis exited his vehicle and approached Plaintiff's vehicle to check on the driver and his passenger. Davis's Statement at 1. Davis further states

I wasn't thinking straight at the time but I gave the driver of the van, later identified to me by the police as [Plaintiff],[8] my wallet and truck key. My wallet had all my identification and my bank/credit card in it. I watched [Plaintiff] after I gave him the key and he walked around with it, I thought he was going to write down my information for the accident but he never did. A women [ sic ] later identified to me by the police as [Matthews-Benson] was in the van and could have taken ...


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