Ficklin v. Rusinko

• Decision Date: 14 September 2020
• Docket Number: 6:18-CV-06310 EAW
• Parties: TERRICK FICKLIN, Plaintiff, v. DOUGLAS RUSINKO and CARL JASON, Defendants.
• Court: U.S. District Court — Western District of New York

TERRICK FICKLIN, Plaintiff, v. DOUGLAS RUSINKO and CARL JASON, Defendants.

6:18-CV-06310 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 14, 2020

DECISION AND ORDER

INTRODUCTION

Plaintiff Terrick Ficklin ("Plaintiff") commenced this action against Parole Officers Douglas Rusinko ("P.O. Rusinko"), Carl Jason ("P.O. Jason"), and Kathryn VanDusen ("P.O. VanDusen"), asserting several claims. (Dkt. 1 at 7-17). By Decision and Order dated January 8, 2019, the Court granted in part and denied in part the defendants' Motion to Dismiss, and dismissed P.O. VanDusen from the action. (Dkt. 8). Plaintiff's remaining claims are § 1983 claims for abuse of process and a Fourth Amendment violation in connection with Plaintiff's body cavity search, against defendants P.O. Rusinko and P.O. Jason (collectively "Defendants").

Presently before the Court are the parties' motions for summary judgment. (Dkt. 17 (Defendants' motion); Dkt. 19 (Plaintiff's motion)). For the reasons that follow, Defendants' motion is granted with respect to the abuse of process claim, but the motions are otherwise denied.

STATE OF THE RECORD BEFORE THE COURT

The Court notes at the outset that the submissions of the parties are far from robust. Defendants filed their motion for summary judgment on January 30, 2020, in accordance with the Court's scheduling order (Dkt. 15), and supported that motion by a four-page statement of undisputed facts (Dkt. 17-1) with citations to Plaintiff's deposition transcript¹ that is attached as an exhibit (Dkt. 17-2) and to deposition exhibits that are not included in the record (see, e.g., Dkt. 17-1 at ¶¶ 1, 2, 8). See Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. . . .").

The Court issued a Text Order the same day Defendants filed their motion, setting February 27, 2020, as the deadline to submit a response to the summary judgment motion, and March 12, 2020, as the deadline for any reply. (Dkt. 18). After the deadline for submitting a response, Plaintiff filed his own separate motion for summary judgment,wherein instead of submitting "a response to each numbered paragraph" in Defendants' statement of undisputed facts as required by this Court's Local Rules, see L. R. Civ. P. 56(a)(2), Plaintiff submitted his own four-page statement of undisputed facts that also refers to deposition exhibits that are not part of the record before the Court (see, e.g., Dkt. 19-1 at ¶¶ 1, 20).

Defendants never submitted a reply in support of their summary judgment motion nor an opposition to the separately filed (and untimely) motion filed by Plaintiff.² Specifically, this Court's Text Order set a deadline for reply papers in support of Defendants' summary judgment motion as March 12, 2020 (Dkt. 18), and this Court's Local Rules otherwise required a response within 28 days after service of Plaintiff's separately-filed summary judgment motion (see Loc. R. Civ. P. 7(b)(2)(A) (requiring responses to motions for summary judgment and cross-motions for summary judgment to be filed 28 days after service, in the absence of a Court order setting forth other deadlines)).

According to this Court's Local Rules: "Each numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motionunless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement." L. R. Civ. P. 56(a)(2). Thus, arguably each party's Rule 56 statement should be deemed true if properly supported by the record evidence. Nonetheless, the Court has endeavored to compare the parties' Rule 56 statements to glean which facts, based upon the statements in both, are truly undisputed.

FACTUAL BACKGROUND

At all times relevant to this action, Plaintiff was a parolee in the custody of New York State Parole. (Dkt. 17-1 at ¶ 1; Dkt. 19-1 at ¶ 1). According to Plaintiff, at some point prior to April 22, 2015, P.O. Jason asked Plaintiff whether he knew an individual who went by the street name "Green Eyes." (Dkt. 17-2 at 52). On the evening of April 21, 2015, Plaintiff witnessed the murder of "[his] man," Moe, on Pardee Street. (Id. at 62). According to Plaintiff, on the morning of April 22, 2015, P.O Rusinko called regarding the murder and requested that Plaintiff come to the parole office. (Id. at 63).

Plaintiff's girlfriend picked him up to take him to the parole office, and the two stopped at the Brooklyn Express Convenience store on North Clinton Avenue in Rochester, New York. (Dkt. 17-1 at ¶ 4; Dkt. 17-2 at 65; Dkt. 19-1 at ¶ 2). After exiting the store, Plaintiff received a call from P.O. Jason who asked, "where Green Eyes at." (Dkt. 17-2 at 68). Plaintiff did not answer the question and hung up the phone. (Id.). Plaintiff then entered the driver's seat of his girlfriend's vehicle. (Dkt. 17-1 at ¶ 5; Dkt. 17-2 at 66). P.O. Rusinko drove by and observed Plaintiff seated in the driver's seat (Dkt. 17-1 at ¶ 6), and arrested Plaintiff for violating a condition of his parole restricting his ability to drive (Dkt. 17-1 at ¶ 7; Dkt. 19-1 at ¶ 5).

After arresting Plaintiff, Defendants transported him by car to the parole office. (Dkt. 17-1 at ¶ 10; Dkt. 19-1 at ¶¶ 6-7). During the car ride, Plaintiff told Defendants that he needed to use the bathroom. (Dkt. 17-1 at ¶ 10). After arriving at the parole office, Defendants escorted Plaintiff to the bathroom. (Dkt. 17-1 at ¶ 11; Dkt. 19-1 at ¶ 7). Plaintiff claims that Defendants then slammed him to the floor, pulled his pants down, and that P.O. Rusinko stated that a confidential informant had indicated Plaintiff had drugs in his rectum. (Dkt. 17-1 at ¶¶ 14-16; Dkt. 19-1 at ¶ 7). P.O. Rusinko put on a glove and stuck his fingers in Plaintiff's rectum but did not find any drugs. (Dkt. 17-1 at ¶ 17; Dkt. 19-1 at ¶¶ 9-11). According to Plaintiff, Defendants implied that the search was done because he would not provide information about Green Eyes. (Dkt. 19-1 at ¶ 15 ("Rusinko told Jason watch him. He said, yo, everything going to be all right. I am going to try and get you an ankle bracelet . . . you could have just given up[]. We could have worked this out. It wouldn't have been like this.")).

As a result of the body cavity search, Plaintiff claims that he suffered intense pain, making it difficult for him to sit on a toilet. (Dkt. 19-1 at ¶ 19). Plaintiff also states that he lost his appetite, developed hemorrhoids, and bled while having a bowel movement. (Id.). Plaintiff also testified that he suffered from depression, experienced flashbacks, and had difficulty sleeping as he "was fucked up in the head" and "traumatized." (Id. at ¶ 20).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as toany material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]" Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown, 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

II. § 1983 Fourth Amendment Claim

A. There are disputed issues of fact as to whether the body cavity search was reasonable under the circumstances.

The Fourth Amendment recognizes the "right of the people to be secure in their persons . . . against unreasonable searches. . . ." U.S. Const. amend. IV. "Whether a search is reasonable 'is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'" United States v. Massey, 461 F.3d 177, 178 (2d Cir. 2006) (quoting Samson v. California, 547 U.S. 843, 848 (2006)). "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979) (citations omitted).

"Courts must 'examin[e] the totality of the circumstances'...