Richardson v. City of Rutland

          OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOCS. 15 & 9)

          CHRISTINA REISS, CHIEF JUDGE.

         This matter came before the court for a de novo review of the Magistrate Judge's December 15, 2016 Report and Recommendation ("R & R") (Doc. 15). The Magistrate Judge recommended that the court grant the motion for summary judgment filed by Defendants City of Rutland, City of Rutland Police Department, and Rutland Police Officer Justin D. Souza (collectively, "Defendants") (Docs. 9). Plaintiff Devin Richardson timely objected to the R & R although he did not cite any grounds for his objection. See Doc. 16 at 1 (stating that Plaintiff "does hereby object to the U.S. Magistrate Judge['s] . . . [R]eport and [R]ecommendation in its entirety").

         Plaintiff is self-represented. Defendants are represented by Kaveh S. Shahi, Esq.

         I. Factual Background.^[1]

         On April 11, 2013, officers from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") conducted a search of a residence in Rutland, Vermont pursuant to a search warrant that was based on information from a confidential informant ("CI"). The CI claimed to have purchased drugs from Joshua Minix at the residence on April 2, 2013. Plaintiff was not named in the search warrant or the supporting affidavit. However, prior to the execution of the search warrant, law enforcement had knowledge that Plaintiff used the alias Gerald Jourdain.

         Plaintiff was asleep when law enforcement entered. Plaintiff initially identified himself as Gerald Jourdain. Officers handcuffed, dressed, and frisked Plaintiff, removed him from the residence, and placed him in a cruiser while officers finished the search. The officers then transported Plaintiff to the Rutland Police Department to investigate his identity and determine his potential involvement in the Minix investigation. Upon arriving at the station, officers again frisked Plaintiff.

         Officers questioned Plaintiff for approximately two hours, during which time Plaintiff admitted his actual identity. The officers also learned that Plaintiff had obtained a fraudulent Vermont identification using his brother's information. Plaintiff was charged with a misdemeanor count of providing a false report to an officer. Officers fingerprinted and photographed Plaintiff in order to positively identify him, and they brought him to an empty holding cell while awaiting confirmation of his identity.

         Pursuant the Rutland Police Department's policy, officers must conduct a "thorough" search of detainees, including all items of clothing where weapons or contraband may be hidden. (Doc. 9-1 at 2.) Officer Souza and an ATF agent entered the holding cell, and Officer Souza conducted a pat down search of Plaintiff. At the time of his detainment, Plaintiff was wearing multiple layers of clothing. Based on his training and experience, Officer Souza had knowledge that contraband may be hidden in multiple layers of clothing.

         Officer Souza requested that Plaintiff remove his top shirt and belt, and Plaintiff complied. Officer Souza then observed that Plaintiff was wearing two pairs of underwear. Officer Souza frisked Plaintiffs underwear and felt an object. Plaintiff contends that Officer Souza "grabbed [his] groin area" once he was undressed "down to his underwear[.]" (Doc. 4 at 3, ¶ 4.) Plaintiff resisted the search and engaged in a physical struggle with the officers, which led to his being restrained. Plaintiff then voluntarily produced a small plastic bag of pills from his underwear.

         The officers applied for and obtained a warrant for a strip search based on Officer Souza's belief that Plaintiff was hiding a larger bag of contraband in his underwear based on the size of the object Officer Souza felt during the previous pat down. The strip search of Plaintiff did not reveal any further contraband.^[2] Plaintiffs misdemeanor charge of false report to a police officer was subsequently dismissed.

         Officers received confirmation of Plaintiff s identity and learned that Plaintiff had an outstanding New York warrant for violating his parole. Plaintiff was transported to Marble Valley Regional Correctional Center in Rutland. On April 12, 2013, officers at Marble Valley Regional Correctional Center searched Plaintiff and discovered oxycodone.

         Plaintiff contends that he was "never charged for any contraband discovered during the first strip search, which was conducted without a warrant" on April 11, 2013. Id. at ¶ 7. On May 6, 2015, Plaintiff pled guilty to one count of conspiring to distribute oxycodone and heroin from the summer of 2012 through April 11 and 12, 2013.^[3] On August 25, 2015, Plaintiff was sentenced to a term of forty-eight months of imprisonment, followed by a three year term of supervised release.

         II. Procedural Background.

         On March 2, 2016, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his rights under the Fourth and Fourteenth Amendments by subjecting him to a strip search without reasonable cause. Plaintiff further alleges that the City of Rutland and the Rutland Police Department had "de facto policies" and practices in place which resulted in a failure to properly train, screen, supervise, or discipline employees and ...