Brown v. City of Utica

KELVIN C. BROWN, Plaintiff, v. CITY OF UTICA, formerly known as the Utica Police Department; SGT MARK FIELDS, SGT.,Special Investigation Unit, Utica Police Department; INV. PAUL PALADINO,Investigator, Special Investigation Unit, Utica Police Department, Defendants.

6:17-cv-01190 (BKS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 4, 2020

Appearances:

Plaintiff, pro se:

Kelvin C. Brown

Utica, NY 13501

For Defendants:

Zachary C. Oren

First Assistant Corporation Counsel

City of Utica

1 Kennedy Plaza

Utica, NY 13502

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Kelvin C. Brown, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Utica Police Department Investigator Paul Paladino, Sergeant Mark Fields, and the City of Utica ("Defendants") for alleged violations of his Fourth Amendment rights. (Dkt. No. 32). Specifically, Plaintiff alleges: (1) that Paladino conducted unconstitutionally intrusive body cavity searches during Plaintiff's arrest on the street and then at the police station (First Claim); (2) that Fields failed to intervene in the search at the police station (Second Claim); and (3) that the City of Utica is liable under Monell¹ for failing to train its employees to lawfully conduct anal cavity searches with judicial authorization. (Third Claim). (Id.). Presently before the Court is Defendants' Motion for Summary Judgment. (Dkt. No. 62). For the reasons that follow, Defendants' motion is granted in part.

II. RECORD BEFORE THE COURT

Along with their motion for summary judgment, and as required by Local Rule 56.2, Defendants provided Plaintiff with a copy of the Northern District of New York's "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion." (Dkt. No. 62-7). It advises that "[a] response to the defendants' statement of material facts" must "admit[ ] and/or den[y] each of the defendants' assertions in matching numbered paragraphs," and "support[ ] each denial with citations to record evidence." (Id.) (quoting N.D.N.Y.L.R. 7.1(a)(3)). Here, in accord with the Local Rules, Defendants filed a Statement of Material Facts, with citations to the record for each. (Dkt. No. 62-9). In his response Plaintiff admitted one fact—that in the underlying criminal case, the Oneida County Court suppressed the evidence discovered during the search. (Dkt. No. 67-14, ¶ 33; Dkt. No. 62-9, ¶ 33). Plaintiff responded to all of the other facts by disputing the fact and citing to the Oneida County Court's decision suppressing the evidence. (Dkt. No. 67-14, at 2-6). Plaintiff filed a Counter-Statement of Material Facts which included citations to testimony from the Oneida County suppression hearing. (Dkt. No. 67-14, at 9-19).²

Defendants argue that because Plaintiff's responses to their Statement of Material Facts are "inadequate" and fail "to comply with Local Rule 7.1(a)(3)," Defendants' facts must be "deemed true." (Dkt. No. 71, at 3). Under these circumstances, the Court may "deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." Local Rule 7.1(a)(3). While the Court "is not required to consider what the parties fail to point out," in deference to Plaintiff's pro se status, the Court has nevertheless conducted "an assiduous review of the record," including Plaintiff's Counter-Statement of Material facts, (Dkt. No. 67-14, at 8-19), to determine whether evidence supports Plaintiff's claims. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Therefore, the facts have been drawn from the facts in the Defendants' Statement of Material Facts and Plaintiff's Counter-Statement of Facts, which are supported by record evidence, (Dkt. Nos. 62-9, Dkt. No. 67-14), the verified Second Amended Complaint, (Dkt. No. 32), and the exhibits attached to the parties' submissions. The facts are taken in the light most favorable to Plaintiff. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).

III. FACTS

A. Plaintiff's Arrest

On the morning of August 14, 2017, Defendant Paul Paladino, who was posing as "Angie." sent Plaintiff text messages. (Dkt. No. 62-3, at 37-38, 40). Paladino texted Plaintiff, "Hey it's Angie. Need 50 hard," referring to the fact that "Angie" wanted to purchase $50 worth of crack cocaine. (Id. at 39-40, 89). Plaintiff texted "[g]imme 15 meet u at your house." (Id. at 89, 40). Plaintiff and "Angie" arranged to meet by a building on Genesee and Hobart Streets in Utica for "Angie" to buy crack cocaine for $50. (Id. at 40, 42). Plaintiff texted "Angie" when hearrived, but nobody was there, so Plaintiff waited on Hobart Street for "about ten minutes." (Id. at 42). Plaintiff was wearing baggy sweatpants and a baggy t-shirt. (Id. at 45). Plaintiff had put hard crack cocaine packaged in plastic, weighing approximately one to two pounds and about the size of "a miniature golf ball," in his buttock crevasse.³ (Id. at 49-50).

After the ten minutes went by, while Plaintiff was still standing on Hobart Street, two uniformed officers, Patrolman Mahay and Defendant Sergeant Mark Fields "appeared simultaneously" in separate cars. (Id. at 42-43). Then, according to Plaintiff, two plainclothes police officers, Investigator David Desens and Paladino, arrived in separate vehicles.⁴ (Id. at 43). Mahay handcuffed Plaintiff with Plaintiff's hands behind his back. (Id. at 43-44). About "[t]wo minutes" later, Paladino approached Plaintiff. (Id. at 46). At some point (although from Plaintiff's testimony it is not entirely clear when this occurred), Paladino called Plaintiff's cellphone and confirmed that Plaintiff was in possession of the phone Paladino had been texting. (Id. at 47, 134, 153).

The parties' versions regarding the search that ensued diverge. Plaintiff testified that Paladino immediately took Plaintiff's phone out of Plaintiff's pocket and began to "search [him] aggressively," particularly in Plaintiff's buttock crevasse. (Id. at 46). Plaintiff, who was wearing sweatpants, further testified that he was patted "through the pants" and that Paladino "stuck his thumb up [Plaintiff's] crevasse to see if anything was there." (Id. at 45-46). The officers lifted Plaintiff's shirt, exposing his waistline. (Id. at 47). Plaintiff started to "yell for help from thepublic," and Paladino "ushered [Plaintiff] in the back seat of the [Mahay's] police car." (Id. at 47, 50).

Paladino testified that when he was "checking [Plaintiff's] upper thigh area and buttocks area" during the pat down search, Plaintiff was "clinching [sic] and flexing his hamstrings and his glutes."⁵ (Id. at 134). Through his "training and experience," Paladino knew that this was a "pretty good indicator that there's some type of contraband concealed within the area of one's person." (Id. at 134-35). Paladino could "feel the corner-knotted portion of what [he knew] through [his] training and experience as a plastic bag," in Plaintiff's "upper thigh . . and buttocks area." (Id. at 134-35). Paladino testified Plaintiff was wearing "boxer briefs" which work better than loose boxers for individuals who put contraband in their buttocks area. (Id. at 155). Paladino testified that after feeling the bulge he "ceased any other actions" and immediately put Plaintiff in the rear of the patrol car to have him transported to the Utica Police Department station.⁶ (Id. at 135). The parties agree that no officer removed Plaintiff's pants or exposed Plaintiff's buttock or penis in the street. (Id. at 46-47; Dkt. No. 62-9, ¶ 19).

B. Plaintiff Is Brought to the Utica Police Department Station

Plaintiff was transported to the police station. (Dkt. No. 62-3, at 50). While in the back seat of Mahay's police car, Plaintiff turned his hand in the handcuffs, reached his "hands in the bottom of [his] rectum area, and inserted [his] finger in [his] crevasse and stuck [the package of crack cocaine] all the way into [his] rectum." (Id. at 50-51). Although it is not clear from the record whether the officers knew exactly what Plaintiff was doing, Paladino and Fields stoppedthe police car and told Plaintiff to "knock it off." (Id. at 51). When Plaintiff arrived at the police station, he was placed in a "holding tank," where he was handcuffed to a railing and "under constant surveillance." (Id. at 52, 187).

C. Paladino Applies for and Obtains a Search Warrant

While Plaintiff was being held, Paladino applied to the Utica City Court for a search warrant. (Dkt. No. 32, at 6; Dkt. No. 62-3, at 93-95). In the application, Paladino described his arrangement to purchase $50 of cocaine from Plaintiff at a corner in Utica, and Plaintiff's arrest after he arrived at the meet location. (Dkt. No. 62-3, at 94-95, 161). Paladino stated that he had "reasonable cause" to search Plaintiff for a "quantity of cocaine." (Id. at 93). Paladino did not indicate that he had reason to believe there were drugs inside Plaintiff's buttocks area or his anal cavity, (id. at 93-95), and he did not request authority to search inside Plaintiff's buttocks area or anal cavity or to remove any items from Plaintiff's anal cavity. (Id.).

At approximately 12:12 pm., a Utica City Court Judge issued a search warrant authorizing officers to search Plaintiff for "a quantity of cocaine." (Id. at 101). According to Paladino, this was a standard search warrant—the kind that would issue were an officer seeking authority to search somebody's pockets. (Id. at 167). There was no reference to any search of Plaintiff's buttocks or anal cavity. (Id. at 101).

D. The Search

After obtaining the warrant, Paladino showed it to Plaintiff (Id. at 55-56). Paladino, Desens, and Mahay escorted Plaintiff "to the back of the central book in the police precinct" to "an empty cell." (Id. at 56). At this point, Plaintiff's hands were cuffed behind his back. (Id. at 187). Paladino removed Plaintiff's clothes. (Id. at 168, 187). Here, the parties' versions of...