Opinion
00-CV-1178.
March 1, 2002
DECISION ORDER
Plaintiff brings this action against the above named defendants pursuant to 42 U.S.C. § 1983 alleging that defendants denied him equal protection, denied him due process, and conspired against him to violate his constitutional rights. Plaintiff's due process claim has already been dismissed as have all claims against District Attorney Penelope Clute. Similarly, all claims against the County of Clinton, except for Plaintiff's allegation regarding an illegal "first come, first serve" policy were previously dismissed as well. See Order dated February 24, 2001, Dkt. 30. Presently before this Court is the motion for Summary Judgment by Detective Desmond Racicot ("Racicot") and the City of Plattsburgh Police Department ("Police Department") and these defendants' motion for attorney's fees.
I. Background
The underlying facts of this case are relatively simple. Between August 3 and August 4, 1997, Plaintiff met with a woman in a bar, had several drinks with her and took her home with him. They had sexual intercourse and she left. Plaintiff claims that the sexual intercourse was consensual and that before she was leaving she attempted to steal his wallet. As a result of this attempted theft, he struggled with her and hit her. He retained the wallet.
The woman alleged that Plaintiff forced her to have sexual intercourse at knife point and that she escaped from his apartment. In any event, she called 911 from a convenience store, was picked up by the police and filed a complaint against the Plaintiff alleging rape.
Detective Racicot was assigned to assist another detective in the investigation of the complaint. He went to Plaintiff's house with a uniformed officer and asked Plaintiff to come to the station with him. Plaintiff complied. Detective Racicot read Plaintiff his Miranda Rights and proceeded to ask him questions about the alleged rape. Plaintiff states that he told Racicot that the woman was lying and that she had tried to steal his wallet. Plaintiff also states that he told Racicot that he wanted to file a complaint against the woman for attempted theft. Plaintiff states that Racicot told him to "shut up." Racicot denies that there was ever mention of the wallet. Both parties agree that Plaintiff claimed the sex was consensual.
Plaintiff was changed with rape, sodomy, and other related crimes. He was tried three times. The first two trials resulted in hung juries. As a result of the last trial, Plaintiff was acquitted.
Plaintiff now brings this claim alleging that the County of Clinton had an unconstitutional policy of only investigating the first complaint made to them and not investigating cross-complaints. He further alleges that the Police Department had a similar unconstitutional policy. Finally, he alleges that Detective Racicot violated his constitutional rights by carrying out the unconstitutional policy.
The Police Department moves for summary judgment on the basis that it is not an entity subject to suit. Detective Racicot moves for summary judgment on the basis of qualified immunity.
II. Discussion
A. Standard for Summary Judgment
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000), and may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). With this standard in mind, the Court will address the parties' arguments.
As an initial matter, the Court notes that Plaintiff's submissions failed to include a Statement of Material Facts in opposition to the Defendants' Statement of Material Facts. Rather, Plaintiff responded with his own Statement of Material Facts, which Defendants have responded to. The Local Rules of this Court specifically provide, at Local Rule 7.1(a)(3), that "any facts set forth in the [moving party's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." The Local Rules further require that the non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise. The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. See Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 2001 WL 237218, at *1 (N.D.N.Y. Mar. 9, 2001) (Hurd, J.); I.B.E.W. Local No. 910 Welfare, Annuity, and Pension Funds v. Dexelectrics, Inc., 98 F. Supp.2d 265, 270 (N.D.N.Y. 2000) (McAvoy, C.J.). Consequently, the Court will accept the properly supported facts contained in Defendants 7.1 Statement as true for purposes of this motion.
The Court notes that this does not apply to the various conclusions of law contained in Defendants' 7.1 Statement.
B. Plattsburgh Police Department
The Plattsburgh Police Department moves for summary judgment on the basis that it is not an entity subject to suit. Plaintiff has not opposed this motion in his papers.
The law is clear that a municipal police department is not subject to suit in 1983 claims because it is an arm of the municipality. See Orraca v. City of N.Y., 897 F. Supp. 148 (S.D.N.Y. 1995) (police department and police precinct not a suable entity); Wilson v. City of N.Y., 800 F. Supp. 1098, 1101 (E.D.N Y 1992), aff'd, 32 F.3d 989 (2nd Cir. 1994) (police department "cannot be sued independently because it is an agency of the City of New York"). Consequently, the claims against the Plattburgh City Police Department are dismissed.
C. Detective Racicot
1. Conspiracy
It appears that Plaintiff makes an allegation in the complaint of a conspiracy to deprive him of his constitutional rights. Plaintiff provides no facts to support this allegation in the complaint. Nor does Plaintiff address the issue in his submissions on this motion. "`[C]onclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights' are insufficient to state a claim for conspiracy under § 1983." Crespo v. New York City Police Commissioner, 930 F. Supp. 109, 117 (S.D.N.Y. 1996) (citations omitted). Thus, a Plaintiff must allege some facts from which a conspiracy can be inferred. Id. at 118. A Plaintiff must provide some "`details of the time and place and the alleged effect of the conspiracy.'" Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (citations omitted).
Plaintiff has failed to provide any facts regarding this alleged conspiracy, and thus, any claim of conspiracy existing in the complaint must be dismissed.
2. Equal Protection
Defendant Racicot asserts that even if the facts as Plaintiff alleges them are true, he is entitled to qualified immunity because there was no clearly established right to be free from a "first come, first serve" policy until after the Second Circuit rendered its decision in Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998), cert. denied, 119 S.Ct. 1042 (1999). Plaintiff does not address the issue of qualified immunity in his motion papers, instead arguing that there is an issue of fact as to what Plaintiff told Detective Racicot during his interview. This argument entirely misses the point.
This Court has already determined in the prior decision in this case that the unconstitutionality of the "first come, first serve" policy was not clearly defined prior to the Second Circuit decision in Myers, see Dkt. 29 (transcript of oral decision), and thus, a reasonable district attorney would not be on notice that her conduct violated a constitutional right. The same reasoning applies to the situation of Detective Racicot. Even assuming such a policy existed at the time of Plaintiff's arrest, a reasonable officer in Detective Racicot's shoes would not be aware that implementing the policy was a violation of Plaintiff's constitutional rights. See Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (2001) (court must consider whether the right was "clearly established" in the context of the specific case); Vega v. Miller, 273 F.3d 460, 466 (2d Cir. 2001) (test is one of objective reasonableness). Consequently, Defendant Racicot is granted summary judgment on the basis of qualified immunity.
III. Attorney's fees
The Second Circuit has instructed that Courts are to be "hesitant to award attorney's fees to victorious defendants in Section 1983 actions." Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994) (citing Santiago v. victim Services Agency of Metropolitan Assistance Corp., 753 F.2d 219, 221 (2d Cir. 1985)). Thus, attorneys fees are to be awarded to Defendants only if "`the plaintiff's claims was frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so.'" Id. (quoting Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986) and Hughes v. Rowe, 449 U.S. 5, 15 (1980)). The fact that a Plaintiff loses his action is not alone sufficient to merit an award of attorneys fees to the defendants. Emma v. Schenectady City School District, 28 F. Supp.2d 711, 727 (N.D.N.Y. 1998) (declining to grant attorneys fees to defendants who prevailed on summary judgment) (citing LeBlanc-Sernberg v. Fletcher, 143 F.3d 765, 770 (2d Cir. 1998)).
Defendants do not argue that Plaintiff's complaint against them was initially frivolous, rather Defendants argue that following this Court's decision regarding the District Attorney, Plaintiff was on notice that his claims against the Police Department and Racicot were frivolous. The Court does not agree. This case involved the application of qualified immunity and a discussion of whether the rights involved were clearly defined at the time of the incident. Moreover, Plaintiff's naming of the Plattsburgh Police Department rather than the City of Plattsburgh, while necessitating summary judgment, does not provide this Court with a basis to find the Plaintiff's case to be wholly frivolous or without merit. Consequently, Defendants' motion for attorney's fees is denied.
Conclusion
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in its entirety. All claims against the City of Plattsburgh Police Department and Detective Racicot are DISMISSED. Defendants' motion for attorney's fees is DENIED.
IT IS SO ORDERED.