Heckler v. Montgomery
| Decision Date | 17 June 2008 |
| Docket Number | No. 07 CV 115(GBD)(MHD).,07 CV 115(GBD)(MHD). |
| Citation | 567 F.Supp.2d 471 |
| Parties | Secured Party Charles HECKLER, Plaintiff, v. Dwayne MONTGOMERY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Charles Heckler, New York, NY, pro se.
Sumit Sud, Asst. Corp. Counsel, New York, NY, for Defendant.
Pro se plaintiff Charles Heckler commenced this action challenging the legality of his arrest, as an unlicensed vendor, and the seizure of his property. Plaintiff named the Deputy Inspector of the 28th Precinct as the sole defendant. Both plaintiff and defendant moved, pursuant to Fed.R.Civ.P. 56(e), for summary judgment. The matter was referred to Magistrate Judge Michael H. Dolinger for a Report and Recommendation ("Report.").
Magistrate Judge Dolinger recommended that plaintiff's motion be denied and defendant's motion be granted. The magistrate judge found that defendant had no personal involvement in plaintiff's arrest or the temporary detention of his property. He further found that "the record is devoid of any legal basis on which to hold defendant liable for the conduct of the officers who arrested plaintiff." (Report at 8). In his Report, Magistrate Judge Dolinger informed the parties of their right to submit objections to the Report, and he advised them that failure to file timely objections to the Report may constitute a waiver of those objections.
The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. 28 U.S.C. § 636(b)(1). When there are objections to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id.; Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See, Fed. R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). When no objections to a Report arc made, the Court may adopt the Report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005) (citation omitted).
Plaintiff filed objections. Since plaintiff is proceeding pro se, his objections, as well as his other pleadings, are to be liberally construed and interpreted to raise the strongest argument they suggest. See, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Plaintiff objects to the Report in its entirety. He argues that the violation of his rights should be considered a breach of contract. He claims that the magistrate judge failed to afford him the rights and protections guaranteed by the Uniform Commercial Code.
The Court has considered plaintiff's objections and find them to be without merit. The Court has examined the Report and finds the record is not facially erroneous. Magistrate Judge Dolinger's recommendation to grant defendant's motion for summary judgment is. therefore, adopted.
Accordingly, plaintiff's motion for summary judgment is denied. Defendant's motion for summary judgment is granted and the complaint is dismissed. Although plaintiff paid the requisite filing fee to bring this action, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. See, Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT & RECOMMENDATION
Pro se plaintiff Charles Hecker commenced this lawsuit, apparently under 42 U.S.C. § 1983, complaining about his 2006 arrest for peddling without a license and several other violations. Although he originally suggested that the arresting officers had used excessive force, he has since waived any claim for personal injury and on that basis avoided having to disclose his medical records during discovery. In his complaint, which is fairly obscurely worded, he names only one defendant, Dwayne Montgomery, who is the Deputy Inspector of the 28th Precinct in Manhattan. As for relief, plaintiff seeks only an award of damages.
At the conclusion of discovery, defendant has moved for summary judgment, which plaintiff opposes. Prior to the end of the discovery period, in June 2007, plaintiff also moved for summary judgment, and that motion too is pending before us.
The pertinent facts are not in meaningful dispute. Plaintiff has been engaged for three or four years in selling CDs on the sidewalk along 125th Street in Manhattan. (Pl.Dep.40-41). He has periodically been approached by law enforcement personnel asking him whether he has a vendor's license, and he twice received summonses because he did not have one. (Id. 61-64).
On November 26, 2006 he was standing on the sidewalk selling CDs of his own music. At the same time he had a large speaker, a CD player and a hand truck, and was playing music that was broadcast through the speaker to attract customers as well as, in plaintiff's view, to "give Jesus the glory for the day" and "to spread the word." (Id. at 57, 73, 78-79, 81-83). Two police officers witnessed his sale of CDs and his playing of music, and one of them then approached him and asked for his license and for identification. (Id. at 89-94). Plaintiff initially responded by telling the officer that he "did not want to do any business with him[,]" and then provided what he described as an "American National ID Card." (Id. at 92-97). According to plaintiff, one of the officers began writing him a summons. (Pl.Dep.99). Plaintiff then began writing down the officer's badge number, and the officer said, in substance, "`You're going to be a smart ass, we're going to take you through the system now.'" (Id.). The officers then sought to arrest him, and he initially resisted by crossing his arms over his chest, although the officers eventually subdued him. (Id. at 106-11).
The police charged plaintiff with peddling without a license, in violation of N.Y. Gen. Bus. Law § 34; failure to have a certificate of authority to collect sales tax, in violation of N.Y. Tax Law §§ 1817(d) & 1134; and resisting arrest, in violation of N.Y. Penal Law § 205.30. (See Declaration of Ass't Corp. Counsel Sumit Sud, executed January 18, 2008 ("Sud Decl."), Ex. H). He was transported to the 28th Precinct and remained in custody for approximately 17 hours. (PI. Dep. at 126-27). At the end of that time he was informed that the District Attorney was declining to prosecute, and he was released. (Id. at 126-27).
The District Attorney did in fact decline to prosecute plaintiff on November 27, 2006. (Sud Decl. Ex. I). As a result, plaintiff's property, which had been seized at the time of his arrest, was returned to him in undamaged condition, with the exception of a small antique knife he had been carrying in his pocket. (Id. Ex. M; PI. Dep. at 79-80, 160-61).
Defendant Montgomery serves in a supervisory capacity at the 28th Precinct. (Sud Decl. Ex. J, ¶ 2). He was not present at plaintiff's arrest and had no involvement in that arrest or the seizure of plaintiff's property. (Pl.Dep.119-20, 131, 156-57, 163-64). Indeed, plaintiff has never spoken to or otherwise interacted with Inspector Montgomery. (Id. at 155). It appears that he chose to sue defendant on the basis of an internet search that led him to discover that Inspector Montgomery held a senior position at the 28th Precinct. (Id. at 150-51). He testified that after this discovery he sent Inspector Montgomery a number of "Affidavit[s] of Intent", stating that he held defendant responsible for the actions of the arresting officers. (Id. at 50-54; Sud Aff. Ex. K).
Inspector Montgomery has moved for summary judgment on a variety of grounds. Principally, he argues that plaintiff's claims against him must fail because he had no involvement in the arrest of plaintiff and the seizure of his property. He also asserts that the arrest was based on probable cause and hence not illegal, and that the seizure of property was permissible and in any event was followed by its return. He further invokes, as an alternative ground, a qualified immunity defense. Finally, he argues that the complaint should be dismissed with prejudice under Rule 12(b)(6) for failure to state a claim.
In the midst of discovery, plaintiff filed a motion styled as one for summary judgment. The best that we can say about it is that it is fairly incoherent and offers no evidence pertinent to any cognizable claim against the defendant. Despite its repeated references to contracts and plaintiff's desire not to enter into one with the police and his mention of the "UCC", the point that we can discern is that plaintiff views himself as not subject to the laws of the community and believes that unless he entered into a contract with the police, they had no authority to make any demands on him. (See "Dispositive Motion" at ¶¶ 1-5, 7; see also PI. Dep. at 99-106).
Plaintiff's later response to defendant's summary-judgment motion is quite similar. In addition, he again seems to ask that summary judgment be awarded in his favor, albeit without citing or proffering any evidence that would tend to establish his Claims.
The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). It is axiomatic that the role of the court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing...
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