Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT HOWARD JOHN GOMBERT, JR.,: Plaintiff : : v. : : LARRY LYNCH and WILLIAM : KAMINSKI, : Defendants : CIVIL ACTION NO. 3:01CV1913(DJS)

NOVEMBER 7, 2006

DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT I. Introduction The defendants Larry Lynch and William Kaminski respectfully submit this Memorandum in Opposition to the plaintiff's Motion for Partial Summary Judgment, dated October 24, 2006. First, the defendants incorporate herein by

reference all of the arguments and factual assertions set forth in their Renewed Motion for Summary Judgment, and supporting documents, filed on October 24, 2006 (hereinafter the "Cross Motion"). The granting of the defendants' Cross Motion

necessarily requires denial of the plaintiff's motion.

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In addition, by way of reply, the plaintiff's motion should be denied for three principal reasons: (1) plaintiff

has failed to present any evidence that would show he is entitled to judgment as a matter of law and has failed to controvert the undisputed facts established by the defendants' Cross Motion; (2) plaintiff has failed to establish that each defendant was directly and personally responsible for the alleged conduct, and that the alleged conduct was the proximate cause of an injury; and (3) plaintiff has wholly misconstrued the "safekeeping" or "community caretaking" exception to the warrant requirement and has set forth an argument on the "plain view doctrine" that is irrelevant. For these, and the reasons

more fully set forth below, the plaintiff's motion should be denied.1

1

The defendants' qualified immunity defense is fully briefed in the defendants' Cross Motion, incorporated herein, and is not restated here. Rather, by way of reply, this Memorandum is focused upon deficiencies in the plaintiff's motion.

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II.

Argument A. The Plaintiff Has Failed To Present Any Evidence That Would Show He is Entitled To Judgment as a Matter Of Law and Has Failed To Controvert the Undisputed Facts Established by the Defendants' Renewed Motion for Summary Judgment

As the movant, the plaintiff bears the burden of establishing that, based upon the undisputed facts, he is entitled to summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Yet, despite bearing this heavy burden,

the plaintiff submitted a Local Rule 56(a) Statement of Facts asserting just 9 facts. See Plaintiff's Local Rule 56(a)(1)

Statement of Facts of 10/24/06, ¶¶ 1-9 ("Pl.'s Statement of Facts"). Plaintiff submitted not a shred of admissible

evidence in support of his motion except, curiously, the affidavit of his counsel verifying the authenticity of the pleadings that are already on file in this matter. Based upon

this complete lack of evidentiary foundation, the plaintiff's motion must be denied.

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The Court's Ruling on Cross Motions For Summary Judgment, dated February 15, 2005 (the "Ruling on Cross Motions"), identified a narrow factual dispute that precluded a ruling on the plaintiff's Fourth Amendment claim regarding removal of property from his automobile, a 1984 white Pontiac Firebird (the "Firebird"), which was located at 322A Aspetuck Ridge Road, New Milford (the "Residence"). The specific factual

dispute was whether, on March 1, 2000, when New Milford Police Department ("NMPD") officers executed a search warrant at the plaintiff's residence, the rear hatch of the Firebird was open, as the defendants asserted, or closed, as the plaintiff claimed. Since the plaintiff has failed to introduce any evidence in support of his motion, and because he has admitted that on the evening of March 1, 2000, he was incarcerated and not present at the Residence, he is unable to controvert the defendant's recollection of what transpired. Pl.'s Statement Based upon

of Facts, ¶6 (admitting that he was not present).

those undisputed facts, the plaintiff cannot prevail.

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Having failed to present any evidence regarding the condition of the Firebird on the evening of March 1, 2000, and early morning hours of March 2, 2000, the plaintiff has removed from contention the factual dispute that prevented this case from being decided on the first Cross Motions for Summary Judgment. defendants. B. The Plaintiff Has Failed To Establish That Each Defendant Was Directly and Personally Responsible For the Alleged Conduct and That the Alleged Conduct Was the Proximate Cause of an Injury Accordingly, judgment must enter in favor of the

It is well settled that, in order to hold a defendant liable under 42 U.S.C. §1983, "[a] plaintiff must establish that each defendant was directly and personally responsible for the alleged conduct and that the conduct was a proximate cause of her injury." Phoenix v. Reddish, 175 F.Supp.2d 215, 218

(D.Conn. 2001) citing Snider v. Dylag, 188 F.3d 51, 54 (2d Cir. 1999); see also Wright v. Smith, 21 F.3d 496, 501-02 (2d Cir.

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1994).2 Repeatedly throughout his motion, the plaintiff has lumped Investigators Lynch and Kaminski together, without any evidentiary support, and has argued that the collective "defendants" should be held liable for some perceived wrong. For example, the plaintiff has argued that "Defendants released a necklace to the Carmel, New York police department. . ." Plaintiff's Memorandum of Law in Support of His Motion for Partial Summary Judgment, at 4 ("Pl.'s Mem.) (the "Necklace"). The plaintiff has further argued that, "the [N]ecklace must have been in one of the bags or boxes unlawfully seized from Gombert's car on March 1, which the Defendants did not have a warrant to search." Pl.'s Mem., at 4. This assertion

about the Necklace, like the rest of the plaintiff's motion, is

2

At the summary judgment stage, a plaintiff must meet this burden of demonstrating personal involvement by submitting admissible evidence showing that each defendant either "directly participated in the infraction," or by pursuing a theory of supervisory official liability. Smith, 21 F.3d at 323. Investigators Lynch and Kaminski are not supervisors and the plaintiff has not alleged a theory of supervisory liability, so the plaintiff must try to prove that each defendant directly participated in the alleged conduct.

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not supported by any admissible evidence. speculation, misguided and incorrect.

It is rank

A party seeking summary judgment must rely on more than mere speculation or conjecture. Jeffreys v. City of New York, In fact, as demonstrated in

426 F.3d 549, 554 (2d Cir. 2005).

the defendants' Cross Motion, the Necklace was not in any of the containers removed from the Firebird, but was actually found in J.'s automobile, a red Fiero. Defendants' Local Rule

56(a)(1) Statement of Facts of 10/24/06, ¶¶78-79 ("Def.'s Statement of Facts"). The Necklace was not listed on the

inventory of items taken from the Residence or Firebird because it was not found in the Residence or the Firebird. Id., at 83.

Furthermore, neither defendant had a role in the disposition of the Necklace found in the plaintiff's girlfriend's car. Investigator James Mullin was the officer

involved with communicating with the Carmel, New York police department regarding their investigation of the plaintiff for the disappearance and suspected death of a teenager in 1995. Id., at ¶84. There is no dispute that, on March 3, 2000,

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Investigator Mullin, a non-party to this action, released the Necklace to Carmel police. 10/24/06, ¶¶53-54. Affidavit of James Mullin of

It is undisputed that neither defendant Id. Even if the

released the Necklace to Carmel police.

release of the Necklace could form the basis of a claim, neither defendant can be held liable for that claim. Similarly, Investigator Lynch was not present at the plaintiff's arrest on February 29, 2000. St., at ¶5. Defs.' Local Rule 56

Investigator Lynch was present, however, at the

search on March 1, 2000 and into the early morning hours of March 2, 2000. It is undisputed that Investigator Lynch made

the decision to remove the property from the open Firebird for safekeeping. Id., at ¶¶98, 102-104.

Investigator Kaminski participated in the search of the Residence on March 1, 2000, but did not remove property from the Firebird. Id., at ¶¶102-104. Based on these undisputed

fact, at the very least, plaintiff cannot establish direct and personal responsibility against Investigator Kaminski regarding the safekeeping of the property in question. Reddish, 175

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F.Supp.2d at 218.

As a result, the plaintiff is not entitled

to summary judgment. C. The Plaintiff has Misconstrued the "Safekeeping" or "Community Caretaking" Exception to the Warrant Requirement and has Set Forth an Argument on the "Plain View" Exception That is Irrelevant

The plaintiff has wholly failed to appreciate the defense to the narrow remaining claim presented by Investigators Lynch and Kaminski, which defense is not predicated on the "plain view doctrine." The plaintiff has also misconstrued the For example, the

Court's prior Ruling on the Cross Motions.

plaintiff has claimed that, "[i]n its Ruling on Cross Motions for Summary Judgment dated February 15, 2005, this Court found that Defendants had unlawfully searched and seized items from Gombert's car on March 1." of 10/24/06, at 1. Pl.'s Mot. for Part. Summ. Judg. Had the

This wishful thinking is absurd.

Court ruled in plaintiff's favor and found a constitutional violation there would be no need for the Cross Motions that were filed on October 24, 2006.

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The plaintiff's singular focus on the "plain view doctrine" manifests itself in the inexplicable claim that the defendants raised the "plain view doctrine" as a special defense. The plaintiff has specifically argued that:

Defendants' second affirmative defense is that their warrantless search and seizure of Gombert's property on March 1 was justified under the plain view doctrine. Pl.'s Mem., at 5. The defendants' Second Affirmative Defense does not reference the "plain view doctrine" and actually reads as follows: SECOND AFFIRMATIVE DEFENSE: The actions and conduct of the Defendants, to the extent that they occurred as alleged, were objectively reasonable under the circumstances of which they were aware, and they enjoy qualified immunity from all liability therefore." Def.'s Answer of 6/30/04.3 The plaintiff apparently misread the Court's Ruling on the Cross Motions and the defendants' Answer and Affirmative
3

The defendants' Second Affirmative Defense specifically raised qualified immunity, which is an affirmative defense. There is no requirement that an exception to the warrant requirement be raised as an affirmative defense.

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Defenses.

Similarly, the plaintiff misunderstood the

defendants' legal argument regarding the "safekeeping" exception to the warrant requirement. The defendants' Answer does not mention the "plain view doctrine" and the defendants have never argued that they removed the property under the "plain view doctrine." Investigator Lynch has consistently made the factual observation that the items were in "plain view" in the open rear hatch of the Firebird. See Affidavit of Larry Lynch of

10/24/06, ¶48; see also Lynch Aff. in Support of Search Warrant. Investigator Lynch has also consistently maintained The plaintiff,

that he removed the property for "safekeeping."

in fact, has acknowledged that Investigator Lynch took the items from the Firebird for safekeeping, but the plaintiff has failed to appreciate the implication of that fact. at 12. In sum, the plaintiff's memorandum, focused almost entirely on the "plain view doctrine," misses the mark by a Pl.'s Mem.,

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mile and is not relevant.

For this additional reason, the

plaintiff's motion must be denied. IV. Conclusion For the foregoing reasons, the defendants Larry Lynch and William Kaminski respectfully request that the Court deny the plaintiff's Motion for Partial Summary Judgment and grant their Renewed Motion for Summary Judgment. DEFENDANTS, LARRY LYNCH and WILLIAM KAMINSKI BY /SS/ James N. Tallberg Federal Bar No.: ct17849 Karsten & Dorman, LLC 29 South Main Street West Hartford, CT 06107 Their Attorney Tel. 860-521-4800 Fax. 860-521-7500 [email protected]

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CERTIFICATION I hereby certify that, on November 7, 2006, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will

be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing. Court's system. /SS/ James N. Tallberg Parties may access this filing through the

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