Julien v. Venditty

PILED

IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y,

UNITED STATES DISTRICT COURT cpp 25 509

EASTERN DISTRICT OF NEW YORK □ FEB 5 2020 ok

Attica EENNNN Emenee: I

. BROOKLYN OFFICE

MACK JULIEN,

Plaintiff,

: MEMORANDUM DECISION

. AND ORDER

- against - . 18-CV-03055 (AMD) (LB)

DETECTIVE MICHAEL VENDITTY, □

Defendant. □

ANN M. DONNELLY, United States District Judge.

The pro se plaintiff, Mack Julien, brings this action pursuant to 42 U.S.C. § 1983 in

forma pauperis. (ECF No. 1.) He alleges that the defendant, Detective Michael Venditti!,

arrested him in Staten Island and sexually assaulted him during a pat-and-frisk search. (ECF No.

1.) On April 26, 2019, the defendant moved for summary judgment pursuant to Federal Rule of

Civil Procedure 56. (ECF No. 34.) For the reasons that follow, the defendant’s motion for

summary judgment is granted.

BACKGROUND?

On December 2, 2016 at approximately 12:30 a.m., the plaintiff and two other men went

' At various points in the record, the defendant’s name is spelled “Venditti” and “Venditty.”

? The defendant sent the plaintiff a notice of his obligation to respond to the motion for summary

judgment; the notice advised the plaintiff that the Court might accept the defendant’s statement of facts as

true if the plaintiff did not respond with affidavits or documents contradicting the defendant’s statement

of facts. (ECF No. 38.) The plaintiff filed an affidavit in opposition to the defendant’s motion, but did

not respond to each statement contained in the defendant’s Rule 56.1 Statement. My discussion of the

facts is drawn from the defendant’s Rule 56.1 statement and exhibits, including deposition and state court

testimony, as well as the plaintiff's submissions and affidavit. I construe the evidence “in the light most

favorable to the non-moving party.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir.

2018) (internal quotation marks and citation omitted); see also T.Y. v. New York City Dept’t of Educ., 584

F.3d 412, 418 (2d Cir. 2009).(“A nonmoving party’s failure to respond to a Rule 56.1 statement permits

to the Holiday Inn on Staten Island and parked in a no-standing/no-parking zone at the entrance.

(ECF No. 36, Def.’s 56.1 Statement (“Def. 56.1”) | 4.) The defendant and his partner were in an

unmarked car about twenty feet away. (Def. 56.1 J] 7-10.) The plaintiff and his friends passed a

cigarette among themselves; the plaintiff claims that it was a Newport cigarette, while the

defendant claims that he smelled marijuana. (Jd. at ] 10; ECF No. 40 4f 1-2.)°

The defendant and his partner approached the car. The defendant took the cigarette,

asked the plaintiff to get out of the car, and asked whether the plaintiff “had anything in his

possession.” (Def. 56.1 | 15.) The plaintiff said he did not, and the detective patted him down

and frisked him for weapons or contraband. (/d. at [§ 14-16.) The parties agree that the

defendant moved his hands over the plaintiff's sweatpants and asked him, “What’s this?” (/d.;

ECF No. 40 { 11.) The plaintiff says that he “moved out of the way” (ECF No. 40 { 17-18)

because he was “uncomfortable”; the defendant “did like some Metrocard swipe under my legs,”

repeatedly grabbed the plaintiff's genitals, and “put pressure on his rectum area, not his groin

area.” (ECF No. 40 {ff 17-18; ECF No. 37-1 at 133.) The defendant says he felt a hard object on

the back of the plaintiff's sweatpants, near his buttocks. (Def. 56.1 4 17.)

The defendant and his partner frisked the other men and took all three to the 121st

precinct. (/d. § 22.) The parties agree that the defendant searched the plaintiff again at the

precinct, but disagree about what happened during the search. (/d. 22.) The defendant says

that he shook the plaintiff's waistband, and then moved from the plaintiff's waistband to the

the court to conclude that the facts asserted in the statement are uncontested and admissible.”); Brown v.

City of New York, No. 15-CV-6217, 2016 WL 7410661, at *1 (E.D.N.Y. Dec. 22, 2016) (“[E]ven a pro se

litigant . . . is bound by an unrefuted Local Rule 56.1 statement.”).

3 The defendant claims that both his window and the plaintiff's window were open; the plaintiff says that □

the weather was cold and windy and that his window was not down when police approached the car.

(Def. 56.1 10; ECF No. 40-4 4.) □□

bottom of the leg until a bag of drugs fell out of the cuff. (/d. at ]25.)* The plaintiff admitted in

his deposition that he had the drugs but did not keep them in his pants; he claims he kept them in

his rectum “in order to keep them away from himself.” (Def. 56.1 Ff 1-2.) According to the

plaintiff, the defendant removed the plaintiff's pants and underwear, reached into his rectum, and

retrieved the drugs. (Def. 56.1 §{] 31-33.)°

The plaintiff was arrested and charged with Criminal Possession of a Controlled

Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth

Degree, three counts of Criminal Possession of a Controlled Substance in the Seventh Degree,

and Unlawful Possession of Marijuana. (ECF No. 37-9.) The plaintiff, represented by counsel,

moved to suppress the drugs, arguing that the search was unlawful. (/d.) The Honorable

Alexander Jeong of the Richmond County Supreme Court conducted a Mapp/Dunaway hearing,

at which both parties testified. (ECF No. 37-8 at 184-190.) The plaintiff testified that he and his

friends were smoking a cigarette when the defendant stopped him, searched him inappropriately,

and did a body cavity search without his consent. The defendant testified that he stopped the

plaintiff after he smelled and saw marijuana, that he did not touch the plaintiff inappropriately,

and that he did not do a body cavity search. (ECF No. 37-8.)

On May 14, 2018, Judge Jeong denied the plaintiff's motion to suppress, ruling that the

defendant had probable cause to stop and arrest the plaintiff and that both searches were

reasonable. (Def. 56.1 F§ 35-36.) Judge Jeong found that the plaintiff's testimony “mostly

corroborates Officer Venditti’s testimony” and that the plaintiff “admitted under oath that he lied

to Officer Venditti at least twice when he was asked if he possessed drugs.” CECF No. 37-8 at

4 The parties agree that the bag contained 7.3 grams of crack-cocaine, 10 glassines of heroin, and 6 pills

alprazolam. (Def. 56.1 at § 26.) There is no evidence that the police vouchered the marijuana

cigarette.

5 The complaint does not include this allegation.

188.) Judge Jeong found the plaintiffs “version of the search at the precinct to be incredible”

and denied the motion in its entirety. (ECF No. 37-8 at 189.)

The plaintiff filed this action on May 22, 2018. (ECF No. 1.) The next day, the plaintiff

pled guilty to Criminal Possession of a Controlled Substance in the Third Degree, P.L. § 220.16.

(Def. 56.1 4 39.)°

STANDARD OF REVIEW

A district court may grant summary judgment only if the parties’ submissions, in the

form of deposition transcripts, affidavits, or other documentation, taken together show that there

is “no genuine dispute as to any material fact,” and therefore the movant is “entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a) & (c); see also Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986). To defeat a properly supported summary judgment motion, the

plaintiff must put forward similar materials setting out specific facts that demonstrate that there

is a genuine issue of material fact to take to a jury. Whethers v. Nassau Health Care Corp., 956

F. Supp. 2d 364, 373 (E.D.N.Y. 2013), aff'd, 578 F. App’x 34 (2d Cir. 2014) (summary order).

The court must draw all reasonable inferences and resolve all ambiguities in the non-

moving party’s favor. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). On the

other hand, a mere “scintilla of evidence in support of the [non-movant’s] position” is inadequate

to avoid summary judgment. Hayut v. State Univ. of New York, 352 F.3d 733, 743 (2d Cir.

2003) (citation and internal quotation marks omitted). Summary judgment is appropriate where

there is “nothing in the record to support plaintiff's allegations other than plaintiff's own

contradictory and incomplete testimony.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843

(2d Cir. 2013) (citation and internal quotation marks omitted).

6 The plaintiff claims that he has appealed his conviction, and that the appellate court’s determination is

_ pending. (ECF No. 40 { 22.)

Because the plaintiff is pro se, I construe his opposition liberally “to raise the strongest

arguments [that] (it] suggest[s].” Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)

(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Application of this standard does

not excuse the plaintiff from providing the evidentiary support necessary to survive a summary

judgment motion; indeed, he “must offer some hard evidence showing that [his] version of the

events is not wholly fanciful.” McAfee v. Law Firm of Forster & Garbus, No. 06-CV-2925,

2008 WL 3876079, at *2 (E.D.N.Y. Aug. 18, 2008) (quoting Jeffreys v. City of New York, 426

F.3d 549, 554 (2d Cir. 2005)); see also Shankle v. Andreone, No. 06-CV-487, 2009 WL

3111761, at *2 (E.D.N.Y. Sept. 25, 2009) (“bald assertions” are insufficient to overcome a

motion for summary judgment).

DISCUSSION

In his lawsuit, the plaintiff makes the same claims he made in support of his motion to

suppress the evidence in the criminal case—that the defendant arrested him without probable

cause and searched him unlawfully. (ECF No. 1.) The defendant maintains that the plaintiff 1s

precluded from bringing these claims because the state court decided the reasonableness and

lawfulness of both searches, and that the claims otherwise fail as a matter of law. (ECF No. 35.)

I agree that the plaintiff's claims are barred by the state court’s ruling.

Federal courts “must give to a state-court judgment the same preclusive effect as would

be given that judgment under the law of the State in which the judgment was rendered.” Jenkins

v. City of New York, 478 F.3d 76, 85 (2d Cir. 2007) (quoting Migra v. Warren City Sch. Dist. Bd.

of Educ., 465 U.S. 75, 81 (1984)). Under New York law, issue preclusion, also known as

collateral estoppel, has two elements: “First, the identical issue necessarily must have been

decided in the prior action and be decisive of the present action, and second, the party to be

precluded from relitigating the issue must have had a full and fair opportunity to contest the prior

determination.” Jenkins, 478 F.3d at 85 (quoting Matter of Juan C. v. Cortines, 89 N.Y.2d 659,

667 (N.Y. 1997)). Put differently, the doctrine of issue preclusion “precludes a party from

relitigating . . . an issue clearly raised in a prior action . . . and decided against that party .. .

whether or not the tribunals or causes of action are the same.” Tsirelman v. Daines, 19 F. Supp.

3d 438, 449 (E.D.N.Y. 2014) (quoting Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 500 (1984));

Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015)

(issue preclusion “bars successive litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior judgment, even if the issue recurs in

the context of a different claim.”). It is “well-settled” that issue preclusion may bar a plaintiff

from bringing a Section 1983 action in federal court. See Barnes v. Cty. of Monroe, 85 F. Supp.

3d 696, 723 (W.D.N.Y. 2015) (citations omitted); see also Johnson v. Watkins, 101 F.3d 792,

795 (2d Cir. 1996) (in actions brought under Section 1983, collateral estoppel “serves the

important purpose of promoting comity between State and federal courts.”) (citations omitted).

The defendant, as the party invoking collateral estoppel, bears the “burden of showing

that the issues are identical and were necessarily decided in the prior action,” and the party

opposing its application bears the “burden of showing that the prior action did not afford a full

and fair opportunity to litigate the issues.” Proctor v. LeClaire, 715 F. 3d 402, 414 (2d Cir.

2013) (citation and quotation omitted). To satisfy these requirements, the issue “must have been

properly raised by the pleadings or otherwise placed in issue and actually determined in the prior

proceeding.” Evans v. Ottimo, 469 F.3d 278, 282 (2d Cir. 2006) (quoting D’Arata v. New York

Cent. Mut. Fire Ins. Co., 76 N. Y.2d 659, 667 (N.Y. 1990)).

The plaintiff had a full and fair opportunity to litigate his claims at the state court

suppression hearing, which resolved those issues against him. The plaintiff, represented by

counsel, argued that the detectives did not have probable cause to stop and arrest him and that the

searches—the pat down at the scene and the search at the precinct—were unconstitutional. (ECF

No. 37-9.) The plaintiff specifically challenged “the manner in which the search was

conducted,” describing it as “intrusive and unwarranted[.]” (ECF No. 37-9 at 191-192.) At the

hearing, the plaintiff testified to essentially the same version of events he alleges in this action:

that the defendant sexually assaulted him and conducted a nonconsensual body cavity search.

Judge Jeong evaluated the witnesses’ credibility, rejected the plaintiff's testimony, and credited

the defendant’s testimony, concluding that the defendant had probable cause to stop and arrest

the plaintiff and that neither search was unconstitutional. (ECF No. 37-8 at 188.) Judge Jeong

explicitly rejected the plaintiff's account of the cavity search as “incredible.” (/d.)

The issues at the hearing are identical to the issues the plaintiff seeks to re-litigate and

were decided against him. See Thomas v. Venditto, 925 F. Supp. 2d 352, 360-61 (E.D.N.Y.

2013) (plaintiff's claim of selective prosecution, which he asserted in a Section 1983 suit, had

been raised, litigated, and decided in his motion to dismiss before state criminal court). And the

plaintiff undoubtedly had a “full and fair opportunity” to litigate the legality of the search.

See Fequiere v. Tribeca Lending, No. 14-CV-812, 2016 WL 1057000, at *9 (E.D.N.Y. Mar. 11,

2016) (in order to meet the “full and fair opportunity to litigate” requirement, the “state

proceedings need do no more than satisfy the minimum procedural requirements of the

Fourteenth Amendment’s Due Process Clause”). Therefore, the doctrine of issue preclusion

applies to the state court’s determination that the defendant had probable cause to arrest the

plaintiff, and that neither search violated the plaintiffs constitutional rights. This determination

bars his current claims.

Even if the plaintiff's claims were not precluded by the doctrine of collateral estoppel, he

is independently barred from bringing these claims under Heck v. Humphrey, 512 U.S. 477

(1994). “[E]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s issuance of a

writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87. Any “claim for damages bearing that

relationship to a conviction or sentence that has not been invalidated is not cognizable under §

1983.” Jd. The plaintiff's challenges to the constitutionality of the searches “implicate the

validity of his conviction[.]” D.S. v. City of New York, 736 F. App’x 284, 287 (2d Cir. 2018)

(summary order). The determination that the defendant’s search of the petitioner was

constitutional is inextricably linked to the plaintiff's guilty plea for possession of a controlled

substance. Under Heck, the plaintiff's guilty plea in state court bars his current efforts to

relitigate the factual foundation of his conviction.’

Because I find that the plaintiff's claims are precluded, I do not reach the issue of whether the defendant

is protected by qualified immunity. See Rasmussen v. City of New York, 766 F. Supp. 2d 399, 415 n.9

(E.D.N.Y. 2011) (“Qualified immunity requires a two step inquiry, in either order, one step of which is

the determination of whether issues exist that a plaintiff's constitutional rights have been violated.”)

(citing Pearson v. Callahan, 555 U.S. 223, 232 (2009) and Tracy v. Freshwater, 623 F.3d 90, 92 (2d Cir.

2010)).

CONCLUSION

For the foregoing reasons, the defendant’s motion for summary judgment is granted in its

entirety. The Clerk of Court is respectfully directed to close this case.

SO ORDERED.

s/Ann M. Donnelly

Donnelly

United States District Judge

Dated: Brooklyn, New York

February 24, 2020