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Montgomery v. Town of Colonie

United States District Court, N.D. New York

October 30, 2017

TOWN OF COLONIE et al., Defendants.

          FOR THE PLAINTIFF: Law Offices of Elmer Robert Keach, III, ELMER R. KEACH, III, ESQ., MARIA K. DYSON, ESQ.

          FOR THE DEFENDANTS: Friedman, Hirschen Law Firm, CAROLYN B. GEORGE, ESQ.



         I. Introduction

         Plaintiff Sherry Montgomery commenced this action pursuant to 42 U.S.C. § 1983, alleging violations of the First and Fourth Amendments and municipal liability against defendant Town of Colonie and certain of its police officers: defendants Steven H. Heider, Jennifer Oliver, Daniel Belles, and Jacques Tremblay.[1] (See generally Am. Compl., Dkt. No. 50.) Pending is defendants' motion for summary judgment. (Dkt. No. 31.[2]) For the reasons that follow, defendants' motion is granted in part and denied in part.

         II. Background

         A. Facts[3]

         On June 10, 2013, at about 12:51 A.M., Tremblay and another Town of Colonie police officer drove, in a marked police car, into the parking lot of the Super 8 motel located at 1579 Central Avenue, Albany, New York. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 32.) As a known location for illegal activity, including drug trafficking and prostitution, the motel is routinely patrolled by Colonie police. (Id. ¶ 2.) In the parking lot was a car “backed up to the door of a motel unit.” (Id. ¶ 3.) Montgomery[4]was driving the car, [5] in which Ronald Montgomery[6] and Tracy Noble were passengers. (Id. ¶¶ 3, 5.) The motel room was rented by another companion, Dorothy Cole, who “was walking towards the [car] but quickly turned away when the police vehicle entered the lot.” (Id. ¶¶ 3-4.)

         An identification check by the Colonie police dispatch showed that Montgomery's driver's license was suspended, Ronald Montgomery was on parole, and Noble was the subject of an open warrant.[7] (Id. ¶ 6.) Two additional Colonie police officers “heard the call-out on the police radio that officers were ‘checking a suspect'” and stopped to offer assistance. (Id. ¶ 7.) Noble was taken to the police station for booking on the warrant[8] and later “submitted to a strip search by a female police officer at the Colonie police lockup[.]” (Id. ¶¶ 8-9.)

         A computer was in plain view in the backseat of the car, and a consensual search of the car “turned up a . . . scale containing . . . residue on the front console and a pair of used surgical-type rubber gloves on the floor of the passenger seat, [and a] television set in the trunk.”[9] (Id. ¶¶ 10-11.) No one admitted ownership of the scale. (Id. ¶ 12.) At about 1:37 A.M., Belles “heard the call-out on the police radio that several of his officers were at the . . . [m]otel” and arrived there about 2:00 A.M. (Id. ¶ 13.) Officers searched Cole's motel room and found a checkbook belonging to a woman in Albany. (Id. ¶ 14.) Colonie police asked Albany City police to investigate a possible burglary at that woman's apartment, and Cole and Noble were later arrested by Albany City police and charged with burglary. (Id. ¶¶ 15-16.)

         Montgomery alleges that she is a practicing Muslim and her religious beliefs preclude her from being touched by a male who is not her partner. (Pl.'s SMF ¶ 1, Dkt. No. 43 at 8.) She also alleges that she was “pat-frisked by a male police officer who may have been . . . Tremblay, ” (id. ¶ 2), despite her objection to the pat-frisk and her request to be pat-frisked by a female officer, (id. ¶ 4). According to Montgomery, the pat-frisk did not yield any weapons or contraband. (Id. ¶ 8.)

         After the pat-frisk, Belles decided to ask Montgomery to undergo a strip search and visual body cavity inspection, and he called in a female officer, Oliver, for that purpose.[10] (Defs.' SMF ¶ 17.) Belles directed an officer to speak with Tremblay and Montgomery about consenting to a strip search. (Dkt. No. 43 at 4; Dkt. No. 49 at 1.) The parties disagree as to whether Montgomery consented. (Defs.' SMF ¶ 31; Pl.'s SMF ¶¶ 21, 23, 25, 27-28, 31.) The parties also disagree as to the Colonie police department's training (or lack thereof) regarding strip searches in the field. (Pl.'s SMF ¶ 49; Dkt. No. 49, Attach. 1, at 11.)

         Oliver conducted a strip search and visual body cavity inspection of Montgomery in the bathroom of the motel room.[11] (Defs.' SMF ¶ 19.) Oliver explained the strip search and visual body cavity inspection procedure to Montgomery before it began. (Id. ¶ 22.) Montgomery removed her clothes one item at a time and handed them to Oliver for inspection, and Oliver did not touch Montgomery's body during the search. (Id. ¶¶ 20, 23.) Montgomery alleges that she “was required to . . . manipulate her genitals and breasts for a visual inspection by . . . Oliver” and “to place her unclothed buttocks on the ledge of the tub and open her legs so that . . . Oliver could look inside her vagina.” (Pl.'s SMF ¶¶ 44-45.) Montgomery also alleges that the bathroom was “filthy” and a male officer “was present right outside the door of the bathroom.”[12] (Id. ¶¶ 42, 46.) Cole also underwent a strip search in the bathroom. (Defs.' SMF ¶ 24.)

         “When the investigation was completed, ” Montgomery was issued a traffic citation for the misdemeanor charge of aggravated unlicensed operation of a motor vehicle in the third degree.[13] (Id. ¶ 32.) Colonie police also made an unrelated drug arrest in the motel parking lot “as this incident was ending.” (Id. ¶ 33.)

         B. Procedural History

         Montgomery filed the instant action in September 2014; she amended her complaint in June 2016. (Compl., Dkt. No. 1; Am. Compl.) Montgomery asserts the following claims under 42 U.S.C. § 1983: (1) Tremblay, Belles, and Oliver, “by preventing [Montgomery] from leaving the motel for a substantial period of time, in the absence of any reasonable suspicion or probable cause that she had committed a crime[, ] . . . violated [her] Fourth Amendment [r]ights, ” (Am. Compl. ¶ 26); (2) Tremblay, Belles, and Oliver violated the Fourth Amendment by strip searching Montgomery, (id. ¶¶ 31-36); (3) Tremblay violated the First Amendment by pat-frisking Montgomery despite her objection and request to have a female officer conduct the search, (id. ¶¶ 38-42); and (4) the Town of Colonie and Heider are liable under a theory of municipal liability, (id. ¶¶ 44-49).

         Pending is defendants' motion for summary judgment. (Dkt. No. 31.)

         III. Standard of Review

         The standard of review pursuant to Fed.R.Civ.P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F.Supp.2d 85, 92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v. Sprague, 489 Fed.Appx. 500 (2d Cir. 2012).

         IV. Discussion

         A. First ...

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