Lynda M. FREGO, Plaintiff-Appellant, Troy Clayton Wallace, Plaintiff, v. Parole Officer F. KELSICK, Senior Parole Officer Senzamici, Defendants-Appellees, New York State Department of Corrections and Community Supervision, Andrea Evans, Chairwoman, Defendants, 690 F. App'x 706

SUMMARY ORDER Plaintiff-Appellant Lynda M. Fregó (“Fregó”) appeals two orders of the district court which collectively granted

summary judgment on Frego’s Fourth Amendment unreasonable search and excessive force claims, brought under 42 U.S.C. § 1983, to Defendant parole officers Fabian Kelsick and Vincent Senzamici. “We review de novo a district court’s grant of

summary judgment, ‘construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.’” Minda v. United States, 851 F.3d 231, 234 (2d Cir. 2017) (quoting SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

A law enforcement officer is entitled to qualified immunity where his discretionary conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware.” Spavone v. N.Y. State of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Pearson v. Callahan, 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The officer receives this protection “unless the unlawfulness of [his] actions was apparent in light of preexisting law.” Doninger v. Niehoff, 642 F.3d 334, 351 (2d Cir. 2011).

Whether a right was clearly established at the time of the conduct at issue is a question of law, whereas whether that conduct was “objectively reasonable, ie., whether a reasonable official would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact.” Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir. 2004). A. Unreasonable Search “The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy.” United States v.

Newton, 369 F.3d 659, 664 (2d Cir. 2004). While a warrantless home search is presumptively unreasonable, Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), a search of a parolee’s residence falls within the “special needs” exception to the warrant requirement, see Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); Newton, 369 F.3d at 665 n.2 (applying “special needs” exception to parole search).

Indeed, parolees “can be subjected to burdens upon their privacy that would be unconstitutional were they applied to the general citizenry, as long as those burdens are imposed pursuant to a regulation that satisfies the Fourth Amendment’s reasonableness requirement.” Moore v. Vega, 371 F.3d 110, 115 (2d Cir. 2004). Under New York law, “there is a reasonableness requirement embedded within the rule” permitting such searches, id. at 116, in that they must be “rationally and reasonably related to the performance of [the officer’s] duty as a parole officer,” People v.

Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 81, 371 N.E.2d 794 (1977). The district court properly concluded that Defendants here are entitled to qualified immunity because they reasonably believed that Frego’s home was the residence of her estranged husband, Troy Clayton Wallace (“Wallace”), an absconded parolee who had been missing for over a week. This belief was reasonable given

(1) Wallace’s wife and high-school-aged daughter, Disney, lived there;

(2) Wallace had failed to report to his assigned housing upon release, and Defendants found no evidence of his presence at three other residences with which he was associated; and

(3) Frego’s upstairs neighbor, William Savino, told Defendants that Wallace “came and went” from Frego’s home. These facts, in tandem, constituted an objectively reasonable basis for believing that Wallace had taken up residence in Frego’s home.

See Moore, 371 F.3d at 117 (concluding that because “defendants [reasonably] believed they were entering the residence of an absconded parolee, ... qualified immunity protected] them from liability, even if that belief was mistaken”) Wallace’s parole entailed consent to searches of his “person, residence!,] and property,” App’x at 60, such that Defendants’ reasonable belief that Wallace resided in Frego’s home provided an objectively reasonable basis for Defendants’ conclusion that a home inspection could be conducted.

Further, Defendants here were privy to strong evidence that Wallace — a convicted sex offender — had violated multiple conditions of his parole, including a prohibition on contact with minors, by virtue of his presence in Frego’s house. Defendants therefore reasonably concluded they could, in the course of their parole-related duties, and despite Frego’s objection, see United States v.

Lovelock, 170 F.3d 339, 345 (2d Cir. 1999) (“A person who occupies a premises jointly with another has a reduced expectation of privacy since [she] assumes the risk that [her] house-mate may engage in conduct that authorizes entry into the premises.”), “do a visual inspection [of Frego’s home] to make sure [Disney] was safe and to confirm that there were no other individuals, particularly other minors, in the house,” App’x at 57; see United States v.

Ramos, 685 F.3d 120, 125, 129 n.6 (2d Cir. 2012) (upholding warrantless residence search “to determine whether anyone else was present and to look for evidence of any parole violation”); United States ex rel. Santos v. N.Y. State Bd. of Parole, 441 F.2d 1216, 1217-18 (2d Cir. 1971) (upholding warrantless residence search designed to “obtain all the facts and circumstances surrounding” parole violations). The mere fact that Wallace had been arrested moments before the search did not extinguish Defendants’ duty to investigate, and did not render the search unlawful. See United States v.

Barner, 666 F.3d 79, 85-86 (2d Cir. 2012). Accordingly, the district court properly dismissed Frego’s unreasonable search claim on qualified immunity grounds. B. Excessive Force Excessive force claims are governed by the Fourth Amendment’s “objective reasonableness” standard, which the Court applies by “balancing ... ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 388, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Tennessee v.

Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)); accord Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014).

In conducting this assessment, the Court adopts “the perspective of a reasonable officer on the scene” — which “requires careful attention to the facts and circumstances of [the] particular case” — and considers “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865; accord Terebesi, 764 F.3d at 231.

As an initial matter, Fregó failed to object to the magistrate judge’s Report and Recommendation pertaining to her excessive force claim (which the district court adopted in granting

summary judgment on qualified immunity grounds), thereby barring appellate review. See Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008), In any event, given that Defendants were entitled to qualified immunity as to the search, they were also, in the circumstances of this case, entitled to qualified immunity as to the force they used to effectuate it. Defendants were permitted to detain Fregó using reasonable force until their search was concluded, see Muehler v.

Mena, 544 U.S. 93, 98-99, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), particularly because Fregó had already demonstrated a lack of cooperativeness with law enforcement, see Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 1037-39, 185 L.Ed.2d 19 (2013). Further, in so doing, Defendants and other officers allegedly pushed through Frego’s door only because Fregó attempted to lock them out and thus prevent the search, and thereafter an officer simply placed his arm in front of Fregó, the bare minimum amount of force necessary to detain her.

Defendants’ minimal use of force was not objectively unreasonable given their belief that a search of Frego’s home was warranted, and as such Defendants are entitled to qualified immunity on Frego’s excessive force claim. * * * We have considered Frego’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. . Defendants both aver that they did not personally participate in the search. Because Fregó disputes this fact, we assume their participation for the purposes of this analysis. .

As to the alleged search of Disney's room .and drawer, the district court held, in adjudicating Defendants' motion to dismiss under Rule 12(b)(6), that Fregó could not pursue a Fourth Amendment claim based on harm to her daughter. Fregó never challenged that ruling. Accordingly, to the extent that Fregó contends in her opening brief that the scope of the search of Disney’s room was unreasonable, that claim fails.

Further, while Fregó now argues in her reply brief that Defendants' search was unreasonable because she had a privacy interest in Disney’s room and its contents, that argument is waived because it was not made to the district court or included in Frego’s principal brief on appeal. JP Morgan Chase Bank v. Altos Homos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]r-guments not made in an appellant’s opening brief are waived even if the appellant ... raised them in a reply brief.”).