Wallace v. Roche

• Citation: 921 F. Supp. 946
• Decision Date: 29 March 1996
• Docket Number: No. CV 92-5553.,CV 92-5553.
• Parties: Michael WALLACE, Plaintiff, v. W. ROCHE, D. Mann, J. McCormack, M. Dunne, V. Buscemi and D. Dillon, Defendants.
• Court: U.S. District Court — Eastern District of New York

921 F. Supp. 946

Michael WALLACE, Plaintiff, v. W. ROCHE, D. Mann, J. McCormack, M. Dunne, V. Buscemi and D. Dillon, Defendants.

No. CV 92-5553.

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

March 29, 1996.

COPYRIGHT MATERIAL OMITTED

Michael Wallace, Port St. Lucie, FL, pro se.

Jerome B. Fleischman, Corporation Counsel of City of Long Beach, Long Beach, NY, for Defendants Roche, Mann, McCormack, Dunne and Buscemi.

Owen B. Walsh, Nassau County Attorney by Richard Lunger, Deputy County Attorney, Mineola, NY, for Defendant Dillon.

MEMORANDUM DECISION and ORDER

SPATT, District Judge.

In prior proceedings in this Section 1983 action, the Court dismissed portions of the plaintiff's pro se complaint, pursuant to Fed. R.Civ.P. 12(b)(6), for failure to state a cause of action upon which relief could be granted. This action is based on the plaintiff's arrest and state court conviction by guilty plea for possession of illegal substances.

In an Order dated July 6, 1993, the Court denied a motion by the defendants W. Roche, D. Mann, J. McCormack, M. Dunne and V. Buscemi (the "police defendants") to dismiss the first cause of action in the complaint, which alleges that the defendant was arrested without probable cause and was the victim of an illegal search and seizure. Subsequently, the Court granted the police defendants' motion for reconsideration, in which they argued that the fourth amendment issues raised by Wallace in this action had been fully litigated and resolved against him in the state court suppression hearing in the underlying criminal proceeding, after which he entered a plea of guilty. In an Order dated November 6, 1993, the Court adhered to its prior decision and declined to dismiss the plaintiff's Section 1983 fourth amendment claim based solely on the pleadings. The Court noted in that decision that the cases relied upon by the defendants were made in the context of summary judgment motions in which the courts considered evidence outside of the pleadings. In contrast, this Court was then ruling on the defendants' Rule 12(b)(6) motion, in which a court relies only on the complaint and its attachments and accepts all the allegations as true. Wallace's first cause of action was the only one asserted against the police defendants that survived the motion to dismiss.

The police defendants then brought the motion that is presently before the Court for an order granting summary judgment in their favor dismissing the complaint, based on the argument that the issues surrounding the arrest and search and seizure were previously determined in the state court criminal proceeding against Wallace. Transcripts of the state court proceedings and copies of the state court decisions are annexed to the defendants' motion papers.

As a preliminary matter, the Court notes that Wallace's objections to the propriety of this motion are without merit. Wallace contends that the motion is improperly brought because the defendants failed to schedule a pre-motion conference with the Court. However, no such conference is required by the Individual Rules where, as here, one of the parties is proceeding pro se. Wallace also complains that the defendants have made the same argument to the Court three times. With regard to this, the Court notes that the defendants (1) initially moved, pursuant to Rule 12(b)(6), to dismiss the complaint for failure to state a cause of action; (2) then, moved in timely fashion for reconsideration of the Court's denial of the Rule 12(b)(6) as to the first cause of action in the complaint, which motion was granted and upon reconsideration the Court adhered to its initial decision; and (3) moved for summary judgment based on supporting documentary evidence. The Court finds that the defendants' motion practice has been proper at the various stages of this litigation.

Finally, Wallace argues that the defendants should not be permitted to move for summary judgment prior to the completion of discovery and claims that "the plaintiff has not had a sufficient opportunity to engage in discovery of relevant facts, due to the dilatory tactics of the Nassau County Department of Law." Plaintiff's Memorandum of Law dated October 6, 1995. The Court has reviewed the record of the October 6, 1995 discovery conference before United States Magistrate Judge Viktor V. Pohorelsky. At that conference Judge Pohorelsky reviewed each of the plaintiff's discovery demands and the defendants' responses. Judge Pohorelsky found that except for one request, the defendants had responded sufficiently to each demand either by producing the document or asserting that it was privileged or not under their control. The plaintiff was advised by Judge Pohorelsky that discovery demands only compel a response, but that a motion may be made to overcome the assertion of privilege, and, that upon submission of affidavits challenging the truth of a response, a hearing would be scheduled with regard to that challenge. The Court records contain no such challenges by the plaintiff to the defendants' assertions of privilege or to the veracity of the responses.

On October 6, 1995, Judge Pohorelsky directed the defendant Dillon to respond to one outstanding discovery demand. In response to this, on October 16, 1995, the defendant Dillon produced certain documents to the plaintiff and asserted attorney work-product privilege as to others. On October 6, 1995, Judge Pohorelsky also ruled that demands made after September 30, 1995 were beyond the discovery deadline. On December 15, 1996, Judge Pohorelsky denied the plaintiff's application to reopen document discovery, without prejudice to renewal of the application following the Court's disposition of summary judgment motions by the defendants. Accordingly, the Court rejects the plaintiff's contention that the defendants' summary judgment motion is premature due to outstanding discovery issues.

BACKGROUND

The following facts regarding the incidents giving rise to this lawsuit are not in dispute. On February 9, 1990, a vehicle in which the plaintiff and four others were riding was stopped by the police in the City of Long Beach. The police stated that the car was being stopped because it proceeded through a stop sign without stopping. The police removed a cigarette box from a pouch in the back seat of the vehicle and discovered that it contained cocaine wrapped in foil. All five occupants of the vehicle were arrested and searched. A plastic bag containing cocaine and a foil packet containing marijuana were found in Wallace's possession during the search following his arrest.

On April 16, 1990 Wallace was indicted by a Grand Jury on one count of criminal possession of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree, one count of criminal possession of a controlled substance in the fifth degree and one count of unlawful possession of marijuana. Wallace moved to dismiss the indictment, and in an Order dated June 29, 1990, the Hon. Marie G. Santagata dismissed the first count of the indictment based on a determination that the Assistant District Attorney failed to properly instruct the grand jurors as to that count.

Wallace then moved to suppress the physical evidence against him on the ground that he was stopped and arrested without probable cause and that the subsequent search was illegal and in violation of rights secured by the fourth and fourteenth amendments. Proceedings regarding this motion were held in the state court on October 30, 1990, January 4, 1991, February 20, 1991, March 27, 1991 and April 26, 1991. In an order dated May 10, 1991, which set forth findings of fact and conclusions of law, Judge Santagata denied Wallace's motion to suppress and ruled the vehicle stop was proper; that Officer Roche had probable cause to arrest Wallace; and that the search of Wallace was subsequent to the lawful arrest and incident to it.

On July 30, 1991, Wallace withdrew his prior plea and pled guilty to one count of attempted criminal possession of a controlled substance in the fourth degree, a Class D felony, in satisfaction of the entire indictment. An indeterminate sentence of two to four years was imposed by the court on August 22, 1991. Wallace appealed from the judgment of the state court, which was affirmed by the Appellate Division, Second Department in an opinion that stated

Appellate review of the issues raised by the defendant in his main brief and in his supplemental pro se brief, was effectively waived by him as part of his plea bargain. Accordingly, the judgment of conviction is affirmed (see People v. Callahan, 80 NY2d 273 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 NY2d 1 543 N.Y.S.2d 968, 541 N.E.2d 1022).

People v. Wallace, 191 A.D.2d 660, 595 N.Y.S.2d 320 (2d Dep't 1993). Leave to appeal to the Court of Appeals was denied. People v. Wallace, 81 N.Y.2d 1021, 600 N.Y.S.2d 210, 616 N.E.2d 867 (1993).

DISCUSSION

The summary judgment standard

A court may grant summary judgment "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact," Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir.1990), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(c) (summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir.1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).

According to the Second Circuit "summary judgment is a tool to winnow out from the...