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Soller v. Boudreaux

United States District Court, E.D. New York

February 3, 2015

ROSALIE SOLLER and KENNETH DAVE SOLLER, Plaintiffs,
v.
POLICE OFFICER BRYAN BOUDREAUX, SERGEANT WILLIAM TODORO, SOCIAL SERVICES REPRESENTATIVE, COUNTY OF SUFFOLK and TOWN OF SMITHTOWN, Defendants.

OPINION & ORDER

SANDRA J. FEUERSTEIN, District Judge.

On January 9, 2012, plaintiffs Rosalie Soller ("Rosalie") and Kenneth Dave Soller ("Kenneth") (collectively, "plaintiffs") filed a pro se complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendant "Badge #5972, " subsequently identified as Police Officer Bryan Boudreaux ("P.O. Boudreaux"), and "John Doe (2nd Policeman), "[1] seeking "monetary compensation" for the "mental anguish" they allegedly sustained as a result of, inter alia, the "unlawful entry" of their home. (Compl., ¶¶ IV and V). On January 30, 2012, plaintiffs filed a pro se amended complaint, inter alia, adding "Road Supervisor #43G, " subsequently identified as Sergeant William Todoro ("Sgt. Todoro"); "Social Services Representative;" the Suffolk County Police Department ("SCPD"); "Suffolk County Police Dept. chief executive;" "County of Suffolk Executive;" the County of Suffolk ("the County"); and the Town of Smithtown ("the Town") as additional defendants.[2] By order dated May 24, 2012, inter alia, plaintiffs were (a) granted leave to file a second amended complaint ("SAC") and (b) directed to serve and file summonses and the SAC upon all defendants on or before June 30, 2012. (Docket Entry ["DE"] 10). On July 16, 2012, Salvatore A. Lecci, Esq. filed a notice of appearance on behalf of plaintiffs and plaintiffs' pro se SAC against the same defendants.

Pending before the Court are: (1) plaintiffs' motion to amend this Court's July 15, 2013 Minute Order granting Mr. Lecci's motion to withdraw as their counsel in this action to require him to repay the retainer fee that they paid to him; (2) the County's motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings; and (3) plaintiffs' cross motion for (a) partial summary judgment on their Section 1983 Fourth Amendment claims against P.O. Boudreaux and Sgt. Todoro pursuant to Rule 56(a) of the Federal Rules of Civil Procedure and (b) leave to amend the SAC to substitute P.O. Boudreaux and Sgt. Todoro for defendants "Badge #5972" and "Road Supervisor #43G, " respectively. For the reasons stated herein, the branch of plaintiffs' cross motion seeking leave to amend the SAC to substitute P.O. Boudreaux and Sgt. Todoro for defendants "Badge #5972" and "Road Supervisor #430" is granted, and the cross motion is otherwise denied; the County's motion for judgment on the pleadings is converted to a motion for summary judgment pursuant to Rule 12(d) of the Federal Rules of Civil Procedure and, as such, is granted; plaintiffs' claims against the Town are sua sponte dismissed for failure to state a claim for relief; and plaintiffs' motion to amend the July 15, 2013 Minute Order is denied.

I. Background

A. Factual Background

1. Allegations in the SAC

Kenneth is Rosalie's son. (See SAC). Plaintiffs allege, inter alia, that on January 9, 2009, between approximately 3:50 p.m. and 11:50 p.m., "there was banging on outside of house, " then two (2) policemen "broke down back door and questioned [Kenneth] for many hours about alleged death of parents." (SAC, ¶ III.C). According to plaintiffs, the policemen "entered two times without a warrant." (Id.)

Plaintiffs further allege, inter alia, that "Social Service's Representative came to house relating to January 9, 2009 incident with a false report" and that the remaining defendants "are responsible also and are liable." (SAC, ¶ III.C.)

Rosalie claims, inter alia, the following injuries: (1) "unlawful entry to [her] home[;]" (2) emotional trauma (a) from being "accused of being dead or murdered[, ]" (b) from "alleged body missing in [her] house[, ]" (c) "for being missing when [she was] not missing[, ]" (d) "of neighbors thinking [she was] allegedly missing and [she] was not missing[, ]" (e) "from son allegedly murdering parents[] * * * and knowing parents were missing[, ]" and (f) "for alleged accusations of son and false imprisonment of him[;]" (3) an "illegal[] search[]" of her house; (4) "a bad reaction to [her] son being excessively questioned for many hours without warrants[] * * * [and] [to] [p]eople on block being questioned without cause[;]" (5) defamation; (6) "[d]amage of police allegedly accusing [her] son about missing parents[;]" (7) "mental stress and aggravation of being accused of being murdered[;]" (8) "humiliation of allegedly being missing and murdered[;]" (9) "mental anguish;" (10) "trespass[] on [her] property and inside of [her] house[;]" (11) harassment; (12) "[i]ntrusion into [her] personal life[;]" (13) "[d]istress of returning home and finding [it] * * * broken into[;)" (14) violations of her constitutional rights; and (15) "[i]nvasion of privacy of house[.]" (SAC at 5-6).

Kenneth claims, inter alia, the following injuries: (1) "pain and suffering" from the "many hours of breaking in" because he "believed the intruders would hurt [him]" and he "perceived it as [a] threat[;]" (2) "unlawful entry of house[;]" (3) being "confronted in a negative way when question[ed][;]" (4) "[e]conomic loss of money due to defending [him]selftd" (5) "court legal fees and lawyer fees[;]" (6) "threat to [his] safety, well being, recurring entry to home (2 times without warrant)[;]" (7) "Moss of dance opportunities- amateur and Professional[;]" (8) "[i]llegal search of property[;]" (9) violations of his Fourth Amendment constitutional rights; (10) "trespasses on [his] property, was not free to leave[;]" (11) "unreasonable and false imprisonment in house[;]" (12) being "[q]uestioned for something [he] didn't do[;]" (13) "embarras[sment] and humiliat[ion][;]" (14) having his home "broke[n] into" and being "terrorized [] even though [he] was innocent[;]" (15) "trauma" from being "accused of alleged murder[;]" (16) defamation; (17) many hours of "[e]xcessive questioning[;]" (18) wrongful accusations; (19) mental anguish; (20) having a "frightening experience" because he "fear[ed] persons breaking in could harme [sic] [him][;]" (21) harassment; (22) unlawful detention; and (23) "invasion of privacy of home[.]" (SAC at 7-8).

Plaintiffs seek, inter alia, punitive and compensatory damages in an unspecified amount.

2. Undisputed Facts[3]

On January 9, 2009, at approximately 3:50 p.m., the SCPD received a 911 call from Elizabeth Napoli ("Napoli"), a case worker with Suffolk County Adult Protective Services ("SCAPS"), reporting that people from the Smithtown Senior Center ("the Senior Center") (a) told her that an "elderly couple, " who were seventy (70) and seventy-two (72) years old, walk approximately one and a half (1.5) miles from their house to the Senior Center every day that it is open for their lunchtime meals and "eat everything in sight, " including leftovers from other people's plates, "as if they have not seen food, " had not been seen at the Senior Center for over one (1) week; and (b) expressed concern to her that something had happened to the elderly couple. (Plaintiffs' 56.1 Statement ["Plf. 56.1 Stat."], ¶¶ 1-3; County's Counter Statement pursuant to Local Rule 56.1 ["Cty. 56.1 Stat."] at 1). Napoli provided no information about the reliability or trustworthiness of the information she had received from the people from the Senior Center, (Plf. 56.1 Stat., ¶ 4; Cty. 56.1 Stat. at 1), but she did (a) identify the elderly couple as Rosalie and Julius Soller (collectively, "the Sollers") and (b) provide the 911 operator with (i) the Sollers' telephone number; (ii) the address of the Sollers' residence, located at 120 Terry Road, Smithtown, New York ("the Soller residence"), (W. 56.1 Stat., ¶¶ 6 and 11; Cty. 56.1 Stat. at 1); (iii) a description of the Soller residence and its location; and (iv) the Sollers' dates of birth. (Cty. 56.1 Stat. at 1; Mitchell Decl., Ex. F). The 911 operator acknowledged receiving all of the foregoing information, (Pill 56.1 Stat., ¶ 8; Cty. 56.1 Stat. at 2), and "asked if the subjects of the call had any medical history." (Cty. 56.1 Stat. at 2). Napoli responded that Mr. Soller had recently been hospitalized, but she did not know for what reason. (Cty. 56.1 Stat. at 2). In addition, Napoli indicated (a) that there "seems to be an adult son in the house;" (b) that a "workman" who had visited the home reported (i) that the son had just stood in the corner for about a half hour until he was told to go into the hall, then he just stood in the hall and stared without talking "or anything, " so she did not know if the son was "retarded or mentally ill or what, " and (ii) that the house was in "bad condition with garbage and food and stuff laying around;" and (c) that the SCAPS office was only open until 4:30 p.m. and that no one would answer the phone after that time, so if the SCPD needed anything from SCAPS, they were to call the emergency services number that she provided.[4] (Mitchell Decl., Ex. F). The 911 operator relayed the information received from Napoli to a dispatcher at SCPD headquarters. (Pill 56.1 Stat., ¶ 9; Cty. 56.1 Stat. at 2).

Shortly before 4:10 p.m. on January 9, 2009, SCPD headquarters dispatched via radio "Car No. 416" to the Soller residence in response to the 911 call to "[c]heck on the [w]elfare" of the Sollers. (Plf. 56.1 Stat., ¶¶ and 11; Cty. 56.1 Stat. at 1). According to P.O. Boudreaux, in being assigned the check on the welfare' call" at the Soller residence, he was advised: (1) "that the occupants of that home, Rosalie and Yulius [sic] Soller, normally went to the Smithtown Senior Center every day, but they had not been seen at the center for a week[, ]" (Declaration of Brian C. Mitchell ["Mitchell Decl."], Ex. C, ¶¶ 2-3); and (2) "that the Sollers had a handicapped son and * * * that Mr. Soller had been hospitalized in the past month, for reasons unknown." (Id., 4).

Upon arriving at the Soller residence at approximately 4:10 p.m., P.O. Boudreaux and Sgt. Todoro (collectively, "the officers") knocked on the front and back doors for approximately twenty (20) minutes without response. (Plf. 56.1 Stat., ¶ 11; Cty. 56.1 Stat. at 1; Mitchell Decl., Exs. C, ¶ 5 and E). After canvassing the neighborhood with negative results, the officers departed from the Soller residence some time after 4:30 p.m. and traveled to the Senior Center in order to obtain more information. (Plf. 56.1 Stat., ¶¶ 12 and 14; Cty. 56.1 Stat. at 1; Mitchell Decl., Ex. Cs, ¶¶ 6-7 and E). The officers arrived at the Senior Center at approximately 5:00 p.m., but it was closed. (Mitchell Decl., Exs. C, ¶ 7 and G). After reporting their unsuccessful canvas of the Senior Center to SCPD headquarters via radio, the officers further reported that they intended to return to the Soller residence to conduct a "forced entry." (Plf. 56.1 Stat., ¶¶ 16 and 17; Cty. 56.1 Stat. at 1). There was no recorded discussion between the officers and headquarters regarding obtaining a warrant before forcibly entering the Soller residence. (Plf. 56.1 Stat., ¶ 19; Cty. 56.1 Stat. at 2).

Although plaintiffs contend that since the officers got no results from their canvas of the Sollers's neighborhood, they "had no information about whether an automobile customarily parked at the residence was not there indicating that the residents were out[, ]'" (Plf. 56.1 Stat., ¶ 13), the County correctly points out that "[t]here is nothing in the available record to support the contention that an automobile was customarily parked at the residence." (Cty. 56.1 Stat. at 2). To the contrary, it was reasonable to infer from Napoli's assertion during her 911 call that the Sollers walked the approximate mile and a half from their home to the Senior Center on a daily basis, that they did not have an automobile. (Mitchell Decl., Ex. F).

The officers returned to the Soller residence at approximately 5:10 p.m. (Mitchell Decl., Ex. G). After gaining entry into the Soller residence via a "forced rear entry, " (Mitchell Decl., Ex. E), the officers identified themselves as police officers, but received no response. (Mitchell Decl., Ex. C, ¶ 9). According to P.O. Boudreaux, the inside of the Soller residence was "extremely cluttered." (Id.) At approximately 5:20 p.m., the officers "found [Kenneth] hiding in the attic." (Id., Exs. C, ¶ 9 and G). "At that point [the officers] were able to contact another son of the Sollers, Jerome, who resided in Utah, * * * [and] advised [them] that he had just spoken to his parents that day" at approximately 11:00 a.m. (Id., ¶ 10 and Ex. E). Kenneth was not arrested.

B. Procedural History

On January 9, 2012, plaintiffs filed apro se complaint pursuant to Section 1983 against defendant "Badge #5972, " subsequently identified as P.O. Boudreaux, and "John Doe (2nd Policeman), " seeking "monetary compensation" for the "mental anguish" they allegedly sustained as a result of the purported "unlawful entry" of their home. (Compl., ¶¶ IV and V). On January 30, 2012, plaintiffs filed a pro se amended complaint, inter alia, adding defendants, "Road Supervisor #43g, " subsequently identified as Sgt. Todoro; "Social Services Representative;" the County and the Town as additional defendants. By order dated May 24, 2012, inter alia, plaintiffs were (a) granted leave to file a SAC and (b) directed to serve and file summonses and the SAC upon defendants on or before June 30, 2012. (DE 10). On July 16, 2012, Mr. Lecci filed a notice of appearance on behalf of plaintiffs and the pro se SAC.

During a pretrial conference held before me on July 15, 2013, I, inter alia, (a) granted Mr. Lecci's motion to withdraw as plaintiffs' counsel in this action and (b) provided plaintiffs forty-five (45) days to retain new counsel to represent them in this case. Plaintiffs subsequently proceeded pro se in this action until September 8, 2014, when J. Joseph Bainton, Esq. filed a notice of appearance on their behalf.

Pending before the Court are: (1) plaintiffs' motion to amend this Court's July 15, 2013 Minute Order granting Mr. Lecci's motion to withdraw as their counsel in this action to require him to repay them the retainer fee that they paid to him; (2) the County's motion pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings; and (3) plaintiffs' cross motion for (a) partial summary judgment on their Section 1983 Fourth Amendment claims against P.O. Boudreaux and Sgt. Todoro pursuant to Rule 56(a) of the Federal Rules of Civil Procedure and (b) leave to amend the SAC to substitute P.O. Boudreaux and Sgt. Todoro for defendants "Badge #5972" and "Road Supervisor #43G, " respectively.

II. Discussion

A. Plaintiffs' Motion for Leave to Amend

Plaintiffs seek leave to amend their SAC to substitute P.O. Boudreaux and Sgt. Todoro for defendants "Badge #5972" and "Road Supervisor #430, " respectively. The County contends, inter alia, that plaintiff's motion to amend should be denied as futile because, inter cilia, the statute of limitations has run on plaintiffs' claims against the officers and any amendment does not ...


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