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Gerena v. Pezdek

United States District Court, N.D. New York

January 15, 2015

CHARLES W. GERENA, Plaintiff,
v.
NICK PEZDEK, et al., Defendants.

CHARLES W. GERENA, Plaintiff pro se.

TIMOTHY P. MULVEY, Asst. Attorney General for Defendants.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

Presently before the court is the defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 24). This matter was referred for Report and Recommendation on May 22, 2013 by U.S. District Judge David N. Hurd, pursuant to 28 U.S.C. § 636 (b) and Local Rules N.D.N.Y. 72.3(c).

On March 21, 2014, defendants filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 24). After reviewing the motion to dismiss, the response, the replies, and all the documents that were submitted in support of the briefs and plaintiff's complaint, I found that the more prudent course of action was to convert defendants' motion into one for summary judgment and allow both parties to supplement their papers accordingly. (Dkt. No. 34). Plaintiff submitted additional materials on December 9, 2014. Defendants have chosen not to supplement their initial papers.[1]

For the reasons set forth below, this court recommends denying defendants first motion for summary judgment.

DISCUSSION

I. Facts

In plaintiff's civil rights complaint, he alleges that on August 21, 2009, he was adjudicated a dangerous sex offender requiring confinement in a secure treatment facility in a state court proceeding brought pursuant to Article 10 of the Mental Hygiene Law.[2] (Dkt. No. 1 at 1). By Order dated March 20, 2103, plaintiff was ordered released and placed on Strict Intensive Supervised Treatment ("SIST") under the jurisdiction of the Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 24-2). Parole provided the court with conditions of SIST which the court incorporated into its order. ( Id. at 4). On March 18, 2014, plaintiff certified that he read and understood these conditions, and further certified that the signing of the conditions evidenced his agreement to comply. (Dkt. No. 24-3, 24-4). After his release, plaintiff was ordered to report to parole officer Regina Orsaio. (Dkt. No. 24-3 at 1). In the conditions, plaintiff agreed, inter alia, that he "WILL permit my Parole Officer to visit me at my residence, place of employment and/or program, and I WILL permit the search and inspection of my person, residence and property." (Dkt. No. 24-3 at 2, ¶ 9).

On July 24, 2013, DOCCS employees, parole officers Pezdek and Warren, along with unidentified members of the Utica Police Department searched plaintiff and his apartment without a warrant, confiscated and/or destroyed items of personal property, took plaintiff into custody, and placed several SIST violations against him. Id. at 2-3. As a result, plaintiff is currently confined at CNYPC. According to plaintiff, this warrantless search violated his Fourth Amendment rights.[3]

II. Summary Judgment

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the non-movant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (citing Celotex Corp., 477 U.S. at 23). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.

If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Additionally, while a court "is not required to consider what the parties fail to point out, '" the court may in its discretion opt to conduct "an assiduous view ...


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