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Reed v. Sheppard

United States District Court, W.D. New York

May 27, 2015

CHARLES REED, SR., and RICHARD REED, Plaintiffs,
v.
JAMES M. SHEPPARD, Chief of Police; POWELL TEVOR, Inv. Roch City Police Department; ALEX JIMENEZ, Police Officer, RPD; OFFICER MINERKA, RPD; and

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Charles Reed, Sr. ("Mr. Reed") and Richard Reed ("Richard") (collectively, "Plaintiffs") are the father and brother, respectively, of Charles Reed, Jr. ("Parolee Reed"), a person who, at the time of the events at issue, was on parole and subject to the supervision of the New York State Division of Parole ("the Parole Division"). Plaintiffs, proceeding pro se, instituted this action pursuant to 42 U.S.C. ยง 1981 against Kurt Cashman ("Cashman"), [1] a parole officer with the Parole Division, who was charged with the supervision of Parolee Reed, and various named and unnamed law enforcement officers employed by the City of Rochester Police Department and the New York State Police. Plaintiffs claim that their civil rights were violated in connection with a search of their residence conducted by Cashman and the other defendants in the course of Cashman conducting a routine visit to what he believed was Parolee Reed's residence. Cashman moved for summary judgment, and this Court granted his request in a Decision and Order dated January 30, 2014 (Dkt #21), finding that he was entitled to qualified immunity. Cashman has been dismissed from the action.

James Sheppard ("Sheppard"), Trevor Powell ("Powell"), Alex Jimenez ("Jimenez"), and Thomas Minurka ("Minurka") of the Rochester Police Department (collectively, "the RPD Defendants") now have moved for summary judgment on the basis of qualified immunity. Plaintiffs opposed the RPD Defendants' motion, and the RPD Defendants' attorney filed a reply declaration. For the reasons set forth below, the RPD Defendants' motion is granted in part and denied in part without prejudice, with leave to refile.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On the evening of July 27, 2012, Cashman, accompanied by a group of uniformed RPD officers, conducted a visit to what Cashman believed was Parolee Reed's residence. At that time, Parolee Reed had been approved by the Parole Division to live in an apartment on the south side of the second floor of a house located at 532 Upper Falls Boulevard in the city of Rochester, New York.[2] Plaintiffs refer to the south-side, second-floor apartment as "Apartment 2." Apartment 2 was the only apartment in which Parolee Reed was permitted to reside. At the time of the incident at issue here, Richard, Parolee Reed's brother, also lived at 532 Upper Falls Boulevard in Apartment 2. 532 Upper Falls Boulevard has a second apartment, on the north side of the building, which Plaintiffs refer to as "Apartment 1." However, Parolee Reed was not authorized to live in Apartment 1.

On May 31, 2012, in Cashman's capacity as Parolee Reed's parole officer, he visited Parolee Reed's residence at Apartment 2, 532 Upper Falls Boulevard. At that time, Cashman noticed that all the other doors to the building-including the door to the north-side apartment (i.e., Apartment 1)-were blocked, and most of the building appeared to be boarded up and uninhabited.

On June 16, 2012, Cashman met with Parolee Reed at his office and discussed Parolee Reed's living situation. Although Parolee Reed indicated a desire to move in with his girlfriend, he did not mention moving out of the south-side apartment into the north-side apartment at 532 Upper Falls Boulevard. On July 10, 2012, Cashman again met with Parolee Reed at his office and discussed Parolee Reed's living situation. Parolee Reed did not mention moving out of the south-side apartment into the north-side apartment.

On July 27, 2012, Cashman, acting upon confidential information that Parolee Reed had violated the terms of his parole, conducted a home visit of Parolee Reed's approved residence. According to Cashman, several RPD officers accompanied him on the home visit in order to provide assistance, if necessary, with containing Parolee Reed and whoever else might be at the residence.

Upon their arrival at 532 Upper Falls Boulevard, Cashman was met by Richard, who allowed him to enter the building and provided verbal confirmation that he and Parolee Reed lived together in Apartment 2. Parolee Reed was present in a bedroom in Apartment 2. His girlfriend was in bed with him, and some of his personal effects, including his pants and his wallet containing his identification, were nearby. Parolee Reed was in a state of undress and apparently had just awakened.

The RPD Defendants took Parolee Reed and his girlfriend into another room while Cashman conducted a search of the bedroom. Hidden inside a flower pot, Cashman discovered a loaded handgun, which he turned over to the RPD Defendants for processing. Parolee Reed and his girlfriend both were arrested, and, according to Cashman, the RPD Defendants then conducted a search of the residence.

Mr. Reed and Richard subsequently instituted this action seeking money damages based on the warrantless search of the bedroom in Apartment 2 where Parolee Reed was found on July 27, 2012. Cashman moved for summary judgment arguing, inter alia, that Plaintiffs lacked standing and that he was entitled to qualified immunity. Cashman argued that there was no evidence that Mr. Reed lived at 532 Upper Falls Boulevard at the time of the search, and that all evidence demonstrated that he is a longtime resident, with Mrs. Reed, of 14 Lavender Circle in the City of Rochester, New York. Plaintiffs contend that Parolee Reed did live in Apartment 1 at 532 Upper Falls Boulevard, and submitted a purported lease executed by him and Mrs. Reed, who co-owned the property with Mr. Reed, indicating that he rented Apartment 1.

In a Decision and Order dated January 30, 2014, the Court found that there was a question of fact as to whether Mr. Reed lived at 532 Upper Falls Boulevard at the time of the search. This finding was based on several documents submitted by Plaintiffs, including Mr. Reed's driver's license, which gave Mr. Reed's permanent address as 532 Upper Falls Boulevard. Accordingly, the Court declined to hold that Mr. Reed lacked constitutional standing. However, the Court agreed with Cashman that he was entitled to qualified immunity because it was objectively reasonable for him to believe the conduct he engaged in on July 27, 2012, was lawful. Cashman was dismissed as a defendant in this action.

The RPD Defendants now move for summary judgment on the basis that they also are entitled to qualified immunity. The RPD Defendants argue that the same factors relied on by the Court in determining that it was objectively reasonable for Cashman, the parole officer, to believe that his conduct on July 27, 2012, was lawful, apply to them, because Cashman enlisted their aid in effecting the search of the premises. However, none of the RPD Defendants submitted any sworn declarations or ...


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