Charles v. Odum

• Decision Date: 15 June 1987
• Docket Number: No. 84 Civ. 4817 (PKL).,84 Civ. 4817 (PKL).
• Citation: 664 F. Supp. 747
• Parties: Barbara CHARLES and Jeffrey H. Newman, Plaintiffs, v. "John" ODUM, "John" Scott, "John" Edmunds, "John" Itzkowitz, The City of New York, Kenneth Schaeffer, and Edward C. Sullivan, Defendants.
• Court: U.S. District Court — Southern District of New York

664 F. Supp. 747

Barbara CHARLES and Jeffrey H. Newman, Plaintiffs, v. "John" ODUM, "John" Scott, "John" Edmunds, "John" Itzkowitz, The City of New York, Kenneth Schaeffer, and Edward C. Sullivan, Defendants.

No. 84 Civ. 4817 (PKL).

United States District Court, S.D. New York.

June 15, 1987.

Roberts & Roberts, New York City, for plaintiffs; Michael J. Roberts, of counsel.

Peter L. Zimroth, Corp. Counsel of the City of N.Y., New York City, for city defendants; Margaret M. Lyons, of counsel.

Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for state defendants; Nancy M. Lerner, of counsel.

LEISURE, District Judge:

Defendants in this civil rights action pursuant to 42 U.S.C. ß 1983 have moved for summary judgment under Fed.R.Civ.P. 56.

Factual Background

This case grows out of a quarrel between two women sharing an apartment. The following narrative has been drawn from the parties' statements pursuant to Civil Rule 3(g) of the Southern District, depositions of the plaintiffs, and other exhibits to the parties' motion papers. The Court finds that there is no genuine issue as to any material fact. See Fed.R.Civ.P. 56(c).

At some point in the fall of 1981, Barbara Charles, a plaintiff herein, met Janet Sturman and made arrangements to share Charles' two-bedroom apartment. The apartment was located at 160 Claremont Avenue, # 4D, New York City. Charles and Sturman agreed that Sturman would live in one bedroom and have the use of common areas, including the kitchen, bathroom, front room and hallway. Sturman would also be allowed use of the furnishings in the apartment.

Every month while she lived in the apartment, up to and including May 1984, Sturman paid Charles an amount fully covering the rent that Charles was being charged by her landlord, plus an additional $100. Sturman and Charles also agreed to divide the utilities expenses, with Sturman paying about two-thirds of the total. Jeffrey Newman, Charles' fiancÈ and a plaintiff herein, never entered any agreement with regard to the apartment and never used it as his residence.

From the fall of 1981 through the spring of 1984, Sturman lived in the apartment. Charles rarely stayed there overnight, but used it during the day for studying and other purposes about two or three times a week at most. See Transcript of Deposition of Barbara Charles, held on November 19, 1985 (the "Charles Deposition"), at 17-18, 72, 77-78, 128.

In May 1984, Sturman and Charles had a disagreement concerning the use of the apartment. On May 22, 1984, as a result of this disagreement, Charles hired a locksmith to change the locks on the apartment. Charles took this action after discovering that the locks had already been changed to prevent her entry. Sturman was not at the apartment when Charles had the locks changed and Sturman was not given keys to the new locks at that time.

During the evening of May 22, 1984, Sturman found that the locks had been changed and that she could not get into the apartment. Her belongings were still inside. Seeking assistance, Sturman telephoned the community office of Edward C. Sullivan, a New York State Assemblyman and a defendant herein. She spoke with Kenneth D. Schaeffer, a full-time member of Assemblyman Sullivan's staff and a defendant herein.

Sturman told Schaeffer that she had been subletting the apartment for several years, that she had paid rent through the end of May 1984, and that she had been locked out. Schaeffer suggested that Sturman contact the police. Sturman had difficulty securing assistance from the police.

At about 10:00 p.m., Sturman returned to the apartment and again attempted to gain entry. By that time, Charles and Newman were inside the apartment. Charles refused to allow Sturman inside, did not give Sturman a key, and did not indicate when she would allow Sturman to retrieve her belongings.

Sturman again contacted Schaeffer by telephone, and he agreed to come to the building to provide assistance. When Schaeffer arrived, Sturman produced her rent receipts for the apartment up to and including May 1984. During the next few hours, Schaeffer made several telephone calls on Sturman's behalf. At about 1:00 a.m., Sturman and Schaeffer went to the 26th Precinct stationhouse ("the stationhouse") at 520 West 126th Street.

Sturman spoke with various police officers at the stationhouse, including Michael Odom and Leo Itzkowitz, also named as defendants herein. Sturman stated that she lived in the apartment, that she had returned there and found that the locks had been changed, and that her landlord was occupying the apartment and refusing to let her inside. Sturman produced the rent receipts for inspection by the police officers.

The police officers consulted Interim Order No. 41 of the New York City Police Department. That guideline discusses actions to be taken pursuant to provisions of the Administrative Code of the City of New York prohibiting the eviction, by means other than a court order, of any occupant of a dwelling unit who has lawfully occupied the unit for thirty consecutive days. Violation of such provisions (the "anti-eviction code") is a Class A misdemeanor.

Itzkowitz and Odom accompanied Sturman and Schaeffer back to the apartment sometime between 1:00 a.m. and 2:00 a.m. The police officers approached the apartment and knocked loudly on the door. The knocking aroused Charles and Newman, who had been asleep inside. Newman was staying in the apartment at Charles' invitation.

Charles went to the door and asked who was there. The police officers identified themselves and asked her to open the door. Charles could see through the peephole that Itzkowitz and Odom were wearing police uniforms.

During the next approximately forty-five minutes, Charles and the officers had several short conversations. The officers wanted Charles to let Sturman into the apartment, but Charles refused to open the door. At some point during this period, Charles telephoned a lieutenant at the stationhouse in order to verify that the men outside her door were in fact police officers. Also during this time, the police officers were rapping on the door and shouting, "You're under arrest." Charles Deposition at 52, 134. Charles continued to refuse to open the door.

At about 2:45 a.m., Sergeant James Edmonds and Officer Charles Scott, also named as defendants herein, arrived at the apartment. Edmonds spoke with Sturman in the hallway. Sturman stated that she had lived in the apartment for about three years, that Charles had changed the locks, and that Charles was refusing to allow her inside. She again produced her rent receipts.

Edmonds joined the other officers in attempting to speak with Charles and to gain entry to the apartment. At some point, Newman undid the lock but left a safety chain in place on the door. Itzkowitz and Odom then broke the chain. Odom and Itzkowitz, followed by Scott and Edmonds, entered the apartment and told Charles that she was under arrest.

Charles walked into the bathroom, and two of the officers followed her. One of the officers displayed handcuffs and both of them stated that Charles was under arrest. Charles Deposition at 56-57, 67. They also threatened to arrest Newman. Id. at 57.

After a short time, Sturman and Schaeffer also entered the apartment. At various points, the defendants were in the hallway, bathroom, front room, and kitchen, which were common areas in the apartment. Id. at 57-60, 131-32; Transcript of Deposition of Jeffrey Newman, held on November 25, 1985 (the "Newman Deposition"), at 60. Also, they possibly may have entered Sturman's bedroom, but not Charles'. Charles Deposition at 131-32.

At some point after the police entered the apartment, Charles or Newman telephoned John Lipsett, Esq., an attorney with whom Charles had previously consulted on May 22. Schaeffer spoke to Lipsett on the telephone, and the two reached an understanding that if Charles and Newman would leave the apartment that evening, then Sturman would not press charges. Following this conversation, one of the police officers gave Charles a summons charging her with a violation of the anti-eviction code. Shortly thereafter, Charles and Newman left the apartment.

It is undisputed that during the foregoing incident, none of the defendants touched Charles or Newman in any manner. It is also undisputed that Assemblyman Sullivan was not present at the apartment at any relevant time.

Discussion

Section 1983 "is not itself a source of substantive rights...." Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Rather, recovery under ß 1983 "is premised upon a showing, first, that the defendant has denied the plaintiff a constitutional or federal statutory right...." Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986). As defendants have noted, plaintiff's complaint fails to specify the constitutional or statutory rights which are alleged to have been denied in this case. See Supplemental and Amended Complaint at ?? 28, 31, 34, 36, 39, 42 (alleging merely that plaintiffs were "deprived of their Constitutionally protected rights"). In opposing defendants' motion,¹ however, plaintiffs stated that they were relying on an alleged denial of their fourth amendment rights.² Defendants have responded that there was no search and no arrest within the meaning of the fourth amendment. See Memorandum of Law of City Defendants at 11. The Court has assumed, for the purposes of the following discussion, that the apartment was searched and that the plaintiffs were arrested.³

It is well-settled that a search conducted pursuant to a voluntarily obtained consent comes within an exception to the general warrant requirement of the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Such consent may be obtained not only from a criminal defendant, but also "from a...