Volpe v. Ryder
| Docket Number | 19-cv-02236 (JMW) |
| Decision Date | 02 November 2023 |
| Parties | CHARLES VOLPE et. al., Plaintiffs, v. PATRICK RYDER et. al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
Gina M. Arnedos, Esq. Steven F. Goldstein, Esq. Wade Clark Mulcahy LLP Attorneys for Plaintiff
Michelle S. Feldman, Esq. Gia Foster, Esq. Scott M. Karson Esq. Richard K. Zuckerman, Esq. Lamb & Barnosky, LLP Attorneys for Defendant Ryder
Michelle S. Feldman, Esq. Scott M. Karson, Esq. Richard K Zuckerman, Esq. Lamb & Barnosky, LLP Attorneys for Defendants Sacks, Massaro, and County of Nassau
Matthew J. Mehnert, Esq. Guercio & Guercio, LLP Attorney for Defendants Ryder, Sacks, Massaro, and County of Nassau
Plaintiff, Charles Volpe, asserts a single claim against Defendants Patrick Ryder, Commissioner of the Nassau County Police Department, in his official and individual capacities; Russell Sacks, Sergeant in the Nassau County Police Department in his individual capacity; Joseph Massaro, Lieutenant in the Nassau County Police Department (“NCPD”), in his individual capacity; and the County of Nassau. Specifically, he alleges that Defendants violated his Fourth Amendment right pursuant to the United States Constitution when they subjected him to a drug test while on sick leave from a line-of-duty injury.
Before the Court is Defendants' Motion for Summary Judgment to dismiss the Amended Complaint in its entirety (ECF No. 144). For the reasons that follow, Defendants' motion is GRANTED.
UNDISPUTED MATERIAL FACTS[1]
The following facts are taken from Defendants' 56.1 statement. On December 11, 2018, Plaintiff Volpe was administered a drug test at the NCPD headquarters in Mineola. (ECF No. 82 ¶ 59.) The test was administered at the authority of Commissioner Ryder, pursuant to Commissioner's Procedural Order 8-95, which authorizes testing of NCPD members for cause upon reasonable suspicion of drug abuse. (ECF No. 145-5 at 6-11) (“Ryder Dep. Tr.”); (ECF No. 145-10 at 4) (“Commissioner's Procedural Order”). The Commissioner's Procedural Order 8-95 defines Drug Abuse as follows:
Drug Abuse - The term “Drug Abuse” shall include the use of a controlled substance or marihuana, which has not been legally prescribed and/or dispensed, and the improper or excessive use of a legally prescribed drug.
(Id. at 2.) The Commissioner's Procedural Order 8-95 defines “Reasonable Suspicion” as follows:
(Id. at 3.)[2]
Prior to authorizing the administration of the test, Commissioner Ryder was advised that Plaintiff suffered a line of duty injury to his right hand on October 4, 2016, and remained on sick leave due to that injury for more than two years, until after the December 11, 2018 drug test, and during that time, Volpe was taking hydrocodone, a prescription pain killer, on a daily basis. (ECF No. 145-6 at 5-8) (“Volpe Dep. Tr.”). Commissioner Ryder was advised that Volpe told a Department Surgeon that he was unable to move his right hand, but Volpe was seen the same day using his right hand. (Ryder Dep. Tr. at 10.) In addition, subsequent to the date of Volpe's right-hand injury, but prior to the date of administration of the drug test, Volpe was observed using his right hand to: put up Christmas decorations at his home; install a child's car seat in his car; drag garbage cans between his house and the street; and operate his mobile phone. (ECF No. 145-7 at 6) (“Sacks Dep. Tr.”). Ryder was also advised that at a hearing on Volpe's application for benefits, Volpe was observed by the hearing officer, Deputy Chief Ronald Walsh, to be sweating “profusely,” and his eyes appeared to be “sunken,” causing the hearing officer to suspend the hearing and report to Commissioner Ryder that the hearing could not continue because “something's wrong” with Volpe. (Ryder Dep. Tr. at 10.) Volpe testified at the hearing that, since the date of his hand injury, he had been taking Vicodin four times per day and Percocet once daily. (ECF No. 145-11 at 4-7.) (“Transcript of Benefits Hearing”). A Department Surgeon reported to Commissioner Ryder that the amount of pain medication being taken by Volpe exceeded that which was necessary and appropriate for an injury of the severity and duration of Volpe's hand injury. (Ryder Dep. Tr. at 10-11); (Sacks Dep. Tr. at 8.)
On December 11, 2018, Deputy Inspector Massaro was the Commanding Officer of the NCPD Medical Administration Office (“MAO”). (ECF No. 145-8 at 5) (“Massaro Dep. Tr.”). Det. Sgt. Sacks was the Deputy Commanding Officer of the MAO. (Sacks Dep. Tr. at 18.) Massaro and Sacks drove from NCPD Headquarters to Volpe's home to order him to return to NCPD headquarters for administration of a drug test for cause based on reasonable suspicion that Volpe was abusing prescription medication. (Sacks Dep. Tr. at 9); (Massaro Dep. Tr. at 8.)
Upon Volpe's arrival at NCPD headquarters, he was directed to the MAO and then to the men's room located on the second floor of the building, across the hall from the MAO and the Chief Surgeon's office. (Sacks Dep. Tr. at 10); (Massaro Dep. Tr. at 10.) Volpe entered the men's room with Massaro, Sacks and Volpe's PBA Representative, Officer Dean Losquadro, whose presence had been requested by Volpe. (Massaro Dep. Tr. at 10-11); (Ryder Dep. Tr. at 13.) Volpe stood at a urinal and was directed to provide a urine sample in a sample cup. (Massaro Dep. Tr. at 12.) Massaro and Sacks were standing behind Volpe, and Losquadro was standing by the bathroom sinks. (Sacks Dep. Tr. at 11.) Volpe was unable to produce a urine sample during this first attempt. (Sacks Dep. Tr. at 11); (Volpe Dep. Tr. at 12.) Volpe was then directed to return to the MAO to wait until he was able to urinate. (Sacks Dep. Tr. at 11-12.) While in the MAO, Volpe was given water, which he drank. (Massaro Dep. Tr. at 17.) They waited approximately 45-60 minutes, and they (Volpe, Massaro, Sacks and Losquadro) then returned to the men's room. (Sacks Dep. Tr. at 12.)
During the second attempt to produce a urine sample, Volpe, Massaro, Sacks and Losquadro were in the men's room. (Id.) That attempt was also unsuccessful. (Id.) During the second attempt, Massaro heard what he believed to be the sound of Volpe coughing up phlegm and spitting into the sample cup. (Massaro Dep. Tr. at 16.) Massaro instructed Volpe to dispose of the cup; Volpe placed the cup in the general waste can. (Id. at 14.) Massaro observed that there was an unknown substance in that cup, and he retrieved the cup from the waste can. (Id. at 15.)
Following the second attempt to produce a urine sample, Volpe was instructed to return to the MAO. (Id. at 16.) Believing that Volpe had engaged in an intentional effort to sabotage the test, two members of the Department's Internal Affairs Unit (“IAU”), Det. Sgt. Bellistri and Det. Sgt. Schuh, joined the others to witness Volpe's third attempt at providing a urine sample. (Id. at 17.) Thus, Volpe's third attempt was witnessed by Massaro, Sacks, Losquadro and the two IAU officers, Bellistri and Schuh. (Ryder Dep. Tr. at 12); (Massaro Dep. Tr. at 22.) During the third attempt, in order to ensure the integrity of the collection of Volpe's urine sample, Massaro directed that Volpe could not stand facing the urinal, with his back to the witnesses, as he was permitted to do during the first two attempts. (Id. at 21.) Volpe was not otherwise told where to stand for the third attempt. (Id.)
There is a window located at the east end of the second-floor men's room, facing Franklin Avenue. (Id.) The window features frosted glass and a bottom panel that opens inward into the room to a 45-degree angle, hinged from the bottom.[3] (Massaro Dep. Tr. at 20.) Massaro stood with his back to the bathroom sinks, facing Volpe. (Id. at 22); (Sacks Dep. Tr. at 15.) Losquadro stood to Massaro's left, leaning against one of the bathroom sinks while Sacks, Bellistri and Schuh stood between the stalls and the bathroom door. (Id.) It was approximately 9:00 p.m. and completely dark outside at the time of the third attempt, and the second-floor window faced a grassy courtyard located between the headquarters building and Franklin Avenue. (Volpe Dep. Tr. at 13, 15.) On the third attempt, Volpe successfully produced a urine sample. (Massaro Dep. Tr. at 23.) Volpe then left headquarters and drove himself home. (Volpe Dep. Tr. at 20.)[4]
Plaintiffs Volpe and the Police Benevolent Association (“PBA”) originally filed the Complaint in this Court on April 16, 2019 alleging violations of his substantive due process rights, First Amendment right against retaliation, and Fourth Amendment right against unlawful searches and seizures. (ECF No. 1.)
Defendants then filed a motion for pre-motion conference seeking dismissal of the original complaint for failure to state a claim and failure to plead a plausible Monell[5] claim, followed by the filing of the motion itself. (ECF Nos. 22, 33-38.) De...
To continue reading
Request your trial