Hicks v. City of Buffalo

124 F. App'x 20
CourtCourt of Appeals for the Second Circuit
DecidedNovember 18, 2004
DocketDocket No. 03-6199
StatusPublished
Cited by9 cases

This text of 124 F. App'x 20 (Hicks v. City of Buffalo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. City of Buffalo, 124 F. App'x 20 (2d Cir. 2004).

Opinion

SUMMARY ORDER

Plaintiffs-appellants Mamie L. Hicks, Rogers Hicks, Annetta Rowe, and Kimalin Jones appeal from the judgment of the District Court (W.D.N.Y., Skretny, J.) granting defendants-appellees’ motion for summary judgment, dismissing the complaint, denying plaintiffs’ cross-motion for summary judgment, and denying plaintiffs’ motions to take more discovery and to amend the complaint. The parties’ familiarity with the facts and procedural history is assumed.

On appeal, we are asked to consider only: (1) whether the district court erred in granting summary judgment on plaintiffs’ first cause of action against the City of Buffalo (“City”), Erie County (“County”), and the known and unknown individual defendants; and (2) whether the district court erred in granting summary judgment on plaintiffs’ fourth, fifth, and sixth causes of action as against the United States. There is no dispute that plaintiffs have waived their right to appeal any other aspect of the judgment against them, namely, the dismissal of their first cause of action as against the United States, the dismissal of the second and third causes of action in their entirety, and the dismissal of their fourth, fifth, and sixth causes of action as against the City, the County, and the individual defendants.1

For the reasons that follow we affirm.

As to the first cause of action — for violations of 42 U.S.C. § 1983, among other claims — we hold, as a preliminary matter, that the district court properly granted summary judgment in favor of the unnamed defendants, because the statute of limitations had run. Given this undisputed fact, the district court also properly denied, as futile, both plaintiffs’ motion for additional discovery and plaintiffs’ motion to amend the complaint to replace the unnamed defendants with named defendants.

With respect to the first cause of action against the City, we note that the City cannot be held liable for violations of 42 U.S.C. § 1983 under any general theory of respondeat superior. Rather, pursuant to Monell v. Department of Social Services, municipalities can be held vicariously liable for the alleged unconstitutional actions of its agents only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that [municipality’s] officers” or is conducted “pursu[23]*23ant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” 486 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the record is here bereft of any unconstitutional custom or practice on the part of the City, we hold that summary judgment on the first cause of action was properly granted in the City’s favor.

The claim against the County fails for much the same reason. The Monell rule applies to counties, as well as cities, see, e.g., Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226-27 (2d Cir.2004), and, as was true with respect to their claim against the City, plaintiffs have failed to adduce meaningful evidence of any unconstitutional County policy or custom of arresting people in their homes without a warrant. Accordingly, the County cannot be liable under Monell, and summary judgment was properly granted in its favor on the first cause of action.

The Court holds that summary judgment on the first cause of action was properly granted in favor of Deputy Sheriffs Larry Cousins and Timothy Higgins, as well. Preliminarily, plaintiffs have waived any right to appeal the dismissal of the first cause of action against these two individuals. “As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003). Here, the magistrate concluded that both Cousins and Higgins were protected by qualified immunity and that the cause of action against them should, as a result, be dismissed. But the plaintiffs utterly failed to comment on, let alone object to, this conclusion; they challenged only the magistrate’s determinations about the liability of the County. See Plaintiffs’ Objections to Magistrate Judge’s Report and Recommendation of Sept. 28, 2001, at 21 (“[Wjhile plaintiffs acknowledge that the County may not be held liable for the acts of officers under the doctrine of respondeat superior, the action against Higgins and Cousins for a 1983 violation based upon the underlying Fourth Amendment violation may proceed.”). The district court specifically noted plaintiffs’ failure to object to the magistrate judge’s qualified immunity recommendation, and nowhere in them brief do the plaintiffs — who do not distinguish among the defendants — ever challenge that aspect of the district court’s holding.

Even assuming, arguendo, plaintiffs had preserved their right to appeal the judgment for Cousins and Higgins, we would still hold that summary judgment was properly granted in their favor, because the record could not support a finding of liability against them. The only evidence indicates that Cousins (together with another deputy sheriff not named as a defendant in this action) was the first officer to interview Mamie Hicks, first on her front porch and on a second occasion— with her consent — in the foyer of her apartment. Plaintiffs do not allege that Cousins engaged in any wrongdoing while conducting these interviews, which occurred well before other officers made the warrantless search at issue in this case. Indeed, after the second interview, Cousins left to interview Patrick Lee and never returned to 235 Bissell Avenue. He also never went to 1295 West Avenue. There is no evidence indicating Cousins’s involvement with the searches and alleged seizures that followed. Certainly, plaintiffs did not point to any such evidence in their objections to the magistrate’s report, and we are aware of nothing in the record indicating that Cousins was supervising other officers on the scene or was otherwise responsible for their behavior. Hig[24]*24gins had no personal involvement in any of the events at 235 Bissell Avenue, nor was he present when officers entered Annetta Rowe’s apartment. Therefore, he cannot be liable for any aspect of the § 1983 claim that arises therefrom. As to Rowe’s transportation to the police station to give a statement, the relevant question is whether Rowe voluntarily accompanied the officers to the station. See California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Rowe submits that she was effectively arrested because she felt compelled by the totality of the circumstances to accompany the officers to the station. A person’s custodial status is not determined by reference to her subjective reaction to particular circumstances. See United States v. Newton, 369 F.3d 659, 671 (2d Cir.2004).

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Bluebook (online)
124 F. App'x 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-city-of-buffalo-ca2-2004.