Bridgeforth v. County of Rensselaer et al
Filing
126
MEMORANDUM-DECISION and ORDERED, that Defendants Motion for summary judgment (Dkt. No. 114) is GRANTED in part and DENIED in part, consistent with this Memorandum-Decision and Order, and that all named Defendants other than Officer William Bowles are hereby DISMISSED from this action; and it is further ORDERED, that the Plaintiffs Cross-Motion (Dkt. No. 119) is DENIED in its entirety. Signed by Senior Judge Lawrence E. Kahn on July 12, 2012. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
OTIS BRIDGEFORTH,
Plaintiff,
-against-
1:08-CV-0779 (LEK/RFT)
COUNTY OF RENSSELAER, et al.,
Defendants.
___________________________________
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Plaintiff Otis Bridgeforth (“Plaintiff”) commenced this action under 42 U.S.C. § 1983 pro se
and in forma pauperis on July, 17, 2008. See Dkt. No. 1 (“Complaint”). Presently before the Court
are: (1) a Motion for summary judgment filed by Defendants on September 19, 2011; and (2) a
Response and Cross-Motion seeking assorted relief filed by Plaintiff on September 28, 2011. Dkt Nos.
114 (“Motion”); 119 (“Cross-Motion”).
II.
BACKGROUND
A cursory review of the record reveals a convoluted procedural history, laden with extensive
and often inappropriate and untimely filings. The case itself arises from Plaintiff’s arrest at his home in
the city of Troy, New York and Plaintiff’s subsequent allegations of official misconduct on the part of
Troy police officers. See generally Dkt. No. 10 (“Second Amended Complaint”). Plaintiff alleges that
he was violently attacked by heavily-armed officers who came to his apartment in response to a claim
that he had been brandishing a handgun. Id. Plaintiff has specifically alleged that during the arrest he
was forcibly handcuffed by Defendant Officer Robert Nuttal (“Nuttal”) and repeatedly kicked, while
subdued and handcuffed, by Defendant Officer William Bowles (“Bowles”). Dkt. No. 114-3 at 33-35.
In the interests of judicial economy and minimizing inevitable redundancy, however, the Court
presumes the parties’ familiarity with the facts underlying this action and recites the them only to the
extent necessary to resolve the instant Motions. For a more detailed statement of facts, reference is
made to Plaintiff’s Second Amended Complaint. Further, the Court provides a brief procedural history
in an effort to provide a general context for the instant Motions.
Plaintiff initially filed his civil rights Complaint on July 17, 2008. Compl. Prior
to services of Summonses and Complaints upon the twenty-four named defendants, Plaintiff amended
his Complaint and filed a Motion for Summary Judgment. Dkt. Nos. 6, 7. Before the Court adopted a
Report and Recommendation by the Honorable Randolph F. Treece, United States Magistrate Judge,
dismissing the Complaint for failure to comply with Federal Rule of Civil Procedure 8 and 10, Plaintiff
filed a Second Amended Complaint, naming twenty-six individuals as defendants, including law
enforcement officers, attorneys, then Rensselaer County District Attorney and her staff, and two judges.
Dkt. Nos. 8 (“August 2008 Report-Recommendation”), 11 (“August 2008 Order”). On December 8,
2008, the Court adopted another Report-Recommendation by Judge Treece and, inter alia, dismissed
most of the named defendants and all of Plaintiff’s claims except for his excessive force claim against
nine current and former members of the Troy Police Department. Dkt. Nos. 19 (“December 2008
Order”), 14 (“October 2008 Report-Recommendation”).
In the intervening years, Plaintiff has filed numerous motions without the assistance of counsel,
seeking, inter alia, injunctive relief and a declaratory judgement. See, e.g., Dkt. Nos. 59, 68. The
Court does not find it necessary to recount in detail this extensive motion practice but notes that the
majority of these motions have either been denied or struck by the Court or by Judge Treece, often due
to procedural error. See, e.g., Dkt. Nos. 69, 72, 95. On January 3, 2011, Defendants also filed a
2
Motion to dismiss pursuant to Federal Rule of Civil Procedure 37 because Plaintiff had failed to appear
at a scheduled deposition. Dkt. No. 83. On March 28, 2012, the Court denied Defendant’s Motion in
addition to an assortment of requests by Plaintiff. Dkt. No. 125.
Based on the December 2008 Order and subsequent decisions, the only claim still before the
Court is Plaintiff’s allegation that he was subjected to excessive force by his arresting officers.
Defendants have moved for summary, arguing that: (1) Plaintiff’s excessive force claim fails as a
matter of law; (2) the Troy police officers are entitled to qualified immunity; and (3) the Defendants
with no personal involvement are entitled to summary judgment. Mot. at ii. Plaintiff has filed a
Response and Cross-Motion, in which: (1) he contends that there are factual disputes, making a grant
of summary judgment for Defendants inappropriate; and (2) he appears to request that the Court
reconsider past decisions and orders, including more than one that have been the subject of previous
motions for reconsideration. Cross-Mot. at 1-2.1
For the reasons that follow, the Court grants Defendants’ Motion as to all Defendants other than
Defendant Bowles, denies Defendants’ Motion as to Defendant Bowles, and denies Plaintiff’s CrossMotion in its entirety.
III.
STANDARD OF REVIEW
A. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure instructs a court to grant summary judgment if
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED . R. CIV . P. 56(c). Although “[f]actual disputes that are irrelevant or unnecessary” will not
1
In referring to the contents of the Cross-Motion, the Court uses the electronic page numbers
entered by the Clerk on the top of each page.
3
preclude summary judgment, “summary judgment will not lie if . . . the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).
The party seeking summary judgment bears the burden of informing the court of the basis for
the motion and of identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). However, if the moving party has shown that there is no genuine dispute as to any material
fact, the burden shifts to the non-moving party to demonstrate “the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Id. This requires the
non-moving party to do “more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986).
At the same time, the Court must resolve all ambiguities and draw all reasonable inferences in
favor of the non-moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The Court’s duty
in reviewing a motion for summary judgment is “carefully limited” to finding genuine disputes of fact,
“not to deciding them.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
Credibility determinations are ordinarily the province of a jury, not a judge. Anderson, 477
U.S. at 255. However, in the “rare circumstance where the plaintiff relies almost exclusively on his
own testimony, much of which is contradictory and incomplete,” a court may appropriately conclude at
the summary judgment stage that no reasonable jury would credit the plaintiff’s testimony. Jeffreys v.
City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “[T]his narrow exception is for testimony by a
non-movant that possesses the following two characteristics: (1) it constitutes almost the exclusive
4
basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by
any other direct evidence); and (2) it is so lacking in credibility (because the testimony is incomplete
and/or replete with inconsistencies and improbabilities) that, even after drawing all inferences in the
light most favorable to the non-movant, no reasonable jury could find for the non-movant.” Bradley v.
Rell, 703 F. Supp. 2d 109, 114 (N.D.N.Y. 2010) (citations omitted). “Under these circumstances, the
moving party must still meet the difficult burden of demonstrating that there is no evidence in the
record upon which a reasonable factfinder could base a verdict in the plaintiff's favor.” Id. at 554
(citing Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997)). Further, Jeffreys provides only a “narrow
exception” to “the established rule that issues of credibility are not to be resolved by a court on a
motion for summary judgment.” Latouche v. Tompkins, No. 9:09–CV–308, 2011 WL 1103022, at *78 (N.D.N.Y. Mar. 4, 2011) (citations omitted).
B. Motion for Reconsideration
The Court applies an exacting standard when reviewing a motion for reconsideration.
Analytical Surveys, Inc. v. Tonga Partners, L.P., No. 09-2622-cv, 2012 WL 1970389, at *12 (2d Cir.
June 04, 2012). “[R]econsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked – matters, in other words, that might reasonably
be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995). Reconsideration is not appropriate “when the moving party seeks solely to
relitigate an issue already decided,” id. at 257, and “[i]t is well-settled that [a motion for
reconsideration] is not a vehicle for relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple’ . . . .” Sequa Corp.
v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Therefore, the Second Circuit has held that there are
5
only three grounds upon which a court may grant a motion for reconsideration: (1) an intervening
change in law; (2) the availability of evidence not previously available; or (3) the need to correct a clear
error of law or to prevent manifest injustice. Virgin Atlantic Airways v. Nat’l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992); Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir.
1983); Bath Petroleum Storage, Inc. v. Sovas, 136 F. Supp. 2d 52, 56 (N.D.N.Y. 2001) (Kahn, J.).
IV.
DISCUSSION
A. Plaintiff’s Pro Se Status
As a preliminary matter, the Court addresses whether Plaintiff is owed “special solicitude” by
the Court due to his status as a pro se litigant. “It is well established that a court is ordinarily obligated
to afford special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010);
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 191 (2d Cir. 2008); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006);
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). “The rationale underlying this rule is that a pro se
litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important
rights through inadvertence if he is not afforded some degree of protection.” Tracy, 623 F.3d at 101
(citing Triestman, 470 F.3d at 475).
However, “district courts within this Circuit have developed a practice of withdrawing this
solicitude if a pro se litigant is deemed to have become generally experienced in litigation through
participation in a large number of previous legal actions.” Tracy, 623 F.3d at 101. (citations omitted).
While the United States Court of Appeals for the Second Circuit has “occasionally endorsed some
limited forms of this practice,” it has also “expressed . . . concern that the general withdrawal of
solicitude may impose unreasonable burdens on pro se litigants in some circumstances.” Id. (citations
6
omitted). “In sum, relevant precedent indicates that, while a pro se litigant should ordinarily be
afforded a substantial degree of solicitude, the exact degree thereof will depend upon a variety of
factors, including, but not necessarily limited to, the specific procedural context and relevant
characteristics of the particular litigant.” Id. at 103.
In their Motion, Defendants argue that the Court should exercise its discretion and deny special
solicitude to Plaintiff because: (1) he has “filed at least 41 federal civil lawsuits in four different district
courts during the last three years;” (2) he filed his own Motion for summary judgment in this case
(which was subsequently stricken); and (3) he has “experience with federal court summary judgment
motions” and with the local rules. Mot. at 3. The Court notes that special solicitude takes numerous
forms (e.g., relaxing procedural requirements; liberally construing pleadings). See Tracy, 623 F.3d at
101-02 (collecting cases). However, Defendants have not identified any particular area in which the
Court should treat Plaintiff as an ordinary litigant, implying – presumably – that such solicitude should
be withheld across the board. The Court finds such an exercise of discretion and such a refusal to
extend any sort of special solicitude to pro se Plaintiff would be inappropriate in this case.
First, that Plaintiff has undertaken myriad federal suits and has proven himself to be a prolific
motion filer in no way demonstrates that Plaintiff has mastered or even grown particularly familiar with
the substantive and procedural requirements for a properly filed summary judgment motion.2 A review
of this case’s crowded docket sheet reveals that Plaintiff has filed frequently, but been largely
2
In reaching this conclusion, the Court does not means to challenge the finding of Judge
Treece in his Order denying Plaintiff’s request for appointment of counsel that “to date, Plaintiff has
been able to effectively litigate this action.” Dkt. No. 124 at 2. The fact that Plaintiff has not made
errors sufficient to convince the Court or the Magistrate Judge that he is unable to vindicate his
constitutional rights without assistance of counsel is hardly proof that Plaintiff has become an
experienced litigator and should be assumed to possess the same knowledge, expertise, or even
competence of a litigant represented by counsel.
7
unsuccessfully. See generally Dkt. Filings have often been premature or unintelligible and have
demonstrated a misapprehension of the timing and content associated with various motions. See, e.g.,
Dkt. Nos. 23-25, 121. Indeed, the Response and Cross-Motion presently before the Court purports to
be a “combined motion” but fails to clearly state what relief is actually sought, including instead a
smattering of arguments and demands.3 Further, the Cross-Motion veers away from legal argument
and devolves into a mix of personal invective and challenges addressed to Defendants. See, e.g.,
Cross-Mot. at 4 (“THE STUPID IDIOT DEFENDANT FUCKED THE OPERATION UP”), 9 (“YALL
NOT MY KIDS, I DON’T KNOW YOU, I DON’T WANT TO KNOW YOU, YALL BETTER PAY
THE MONEY AND KEEP IT PEACEFUL”), 10 (“I’M STRAIGHT, AND YALL ARE
CONTRADICTED, SO STOP SPEAKING ON MY CIVIL HISTORY BOYA”).
In short, Plaintiff has not demonstrated to the Court that he is capable of navigating the
challenging terrains of legal argument and civil procedure. Therefore, the Court concludes that it
should continue to grant Plaintiff special solicitude and construe his pleadings liberally in order to
ensure that his claims are judged on their merit and not on their inartful recitation.
B. Defendants’ Motion for Summary Judgment
1. Plaintiff’s Excessive Force Claim
The only claim that remains before the Court is Plaintiff’s claim that he was subjected to
excessive force. Dec. 2008 Order. While this claim has been referred to in prior orders and
submissions as falling under the Eighth Amendment, the Court concludes that because the alleged
violence occurred during the course of Plaintiff’s arrest, the claim is more appropriately treated as
3
The first two pages of the Cross-Motion include a numbered list of “causes” including
“Defendants admit,” “Motion to reconsider Dkt. # 68,” and “objections.” Cross-Mot. at 1-2.
8
falling under the Fourth Amendment. See, e.g., Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989)
(“we think the Fourth Amendment standard probably should be applied at least to the period prior to
the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or
joint) of the arresting officer”); Quint v. Dunaj, No. 3:02CV2053, 2006 WL 167563, at *6 (D. Conn.
Jan. 20, 2006) (“the Second Circuit has taken a functional approach to determining when to apply the
Fourth, Fourteenth and Eighth Amendments in the context of a claim for use of excessive force. The
continuum from arrest through incarceration is divided into three sections with different constitutional
provisions governing claims arising in each section: the period of arrest and custody prior to
arraignment is governed by the Fourth Amendment . . . and the time after conviction is governed by the
Eighth Amendment”); Smith v. P.O. Canine Dog Chas, No. 02 6240, 2004 WL 2202564, at *7 n.7
(S.D.N.Y. Sept. 28, 2004) (a “claim that police used excessive force in the course of an individual’s
arrest or ‘seizure’ is properly analyzed under . . . the Fourth Amendment”) (citing Graham v. Connor,
490 U.S. 386, 395-96 (1989)).4
4
Because a court must liberally construe the pleadings of a pro se plaintiff, see generally Part
IV.A, supra, the Court here treats Plaintiff’s excessive force claim (described in the pleadings as
“Police Brutality”) as a claim for excessive force under the Fourth Amendment as opposed to the
Eighth Amendment. To this end, the Court also notes that Plaintiff identified the claim as arising
under both Amendments in his Second Amended Complaint. Compare Second Amended Complaint at
13 (identifying the Second Cause of Action as a claim involving “Police Brutality” under the Second,
Fourth, Fifth, and Sixth Amendments), with ¶ 2 (stating that the alleged “assault” against Plaintiff by
Defendants was committed in violation of the Eighth Amendment). That is, Plaintiff did not explicitly
state that he was bringing his excessive force claim under the Eighth Amendment as opposed to the
Fourth Amendment.
Further, while the Court has previously dismissed Fourth Amendment claims in this case, those
claims involved allegations of unconstitutional search and seizure that were barred by Heck v.
Humprhey. 512 U.S. 477, 486-87 (1994). See December 2008 Order; October 2008 Report-Rec. at 23. Such claims were barred specifically because they challenged the validity of Plaintiff’s criminal
conviction. The Second Cause of Action for excessive force – that the Court allowed to go forward in
the December 2008 Order and that the Court is now clarifying as being treated as a claim under the
Fourth Amendment – does not challenge the underlying criminal conviction and does not cause the
9
A police officer’s use of force is excessive in violation of the Fourth Amendment “if it is
objectively unreasonable ‘in light of the facts and circumstances confronting [him], without regard to
[his] underlying intent or motivation.’” Maxwell v. City of N.Y ., 380 F.3d 106, 108 (2d Cir. 2004)
(quoting Graham, 490 U.S. at 397). To succeed on an excessive force claim, a plaintiff must show that
police officers deployed an “objectively unreasonable” amount of force. Lowth v. Town of
Cheektowaga, 82 F.3d 563, 573 (2d Cir.1996). “Determining whether the force used to effect a
particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citations and internal
quotations omitted).
Further, “a de minimis use of force will rarely suffice to state a Constitutional claim.” Romano
v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). “[T]he Second Circuit and district courts in the Circuit
recognize the concept of ‘de minimis’ injury and, when the injury resulting from alleged excessive
force falls into that category, the excessive force claim is dismissed.” Lemmo v. McKoy, No. 08CV4264, 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011). However, “[i]f the force used was
same Heck problems that Plaintiff’s dismissed Fourth Amendment claims did. See, e.g., Bourdon v.
Vacco, 213 F.3d 625 (2d Cir. 2000) (holding that Heck did not bar excessive force claims stemming
from police officers’ search); MacLeod v. Town of Brattleboro, No. 5:10-cv-286, 2012 WL 1928656,
at *4 (D.Vt. May 25, 2012); Harley v. Suffolk County Police Dept., No. 09-CV-2897, 2012 WL
642431, at *9 (E.D.N.Y. Feb. 28, 2012); Greenfield v. Tomaine, No. 09 CIV. 8102, 2011 WL
2714221, at *7 (S.D.N.Y. May 10, 2011) (“In the Second Circuit, it is ‘well established than an
excessive force claim does not usually bear the requisite relationship under Heck to mandate its
dismissal.’”) (quotation omitted); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997) (permitting
an excessive force claim when plaintiff alleged that the officer “effectuated a lawful arrest in an
unlawful manner”).
Finally, Defendants have used the Fourth Amendment standard in arguing in opposition to this
claim. See, e.g., Mot. at 4-5. Therefore, the Court concludes that Plaintiff’s claim should be treated as
one under the Fourth Amendment.
10
unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent
or severe.” Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987); see also Maxwell v. City of New York,
380 F.3d 106, 108-10 (2d Cir. 2004); Davenport v. County of Suffolk, No. 99 CV 3088, 2007 WL
608125 (E.D.N.Y. Feb. 23, 2007).
In this case, Defendants argue that Plaintiff’s excessive force claim should fail because: (1)
Plaintiff’s uncorroborated account of his arrest is inconsistent, incredible, and insufficient to support a
§ 1983 claim; (2) the force employed by officers was reasonable given the circumstances; and (3) even
if the Court were to credit Plaintiff’s account and find the alleged force unreasonable, Plaintiff has
failed to prove injury. Mot. at 5-7.
The Court notes as a preliminary matter that Defendants’ arguments apply differently to the
different police officer Defendants. The Court concludes that Plaintiff’s claims against officers who
were merely present and had drawn their weapons at the time of arrest fail because – among other
possible defects – Plaintiff has alleged no injury as a result of these officers’ conduct. As to Defendant
Nuttal, the Court concludes that any claim based upon Defendant Nuttal’s handcuffing of Plaintiff also
is deficient as a matter of law. Plaintiff provides practically no description of the specific conduct
ascribed to Defendant Nuttal in his Second Amended Complaint but claims in his deposition that
Defendant Nuttal violently handcuffed him. Dkt. No. 114-3 at 34-35. Absent some allegation beyond
forceful cuffing, the claim against Defendant Nuttal is insufficient as a matter of law.5 See Smith v.
5
Plaintiff alleges that, during the application of the handcuffs, Defendant Nuttal bent
Plaintiff’s wrists in an attempt to injure him. Dkt. No. 114-3 at 34-35. The Court notes that acts of
force beyond the actual application of the handcuffs might not be covered by the relevant case law
finding that cuffing does not amount to excessive force. However, despite the late stage in the
litigation, Plaintiff has provided no further description of Defendant Nuttal’s actions and has alleged no
injury or shown no proof of injury that might suggest to the Court that the force alleged was anything
more than de minimis.
11
City of New York, No. 04 Civ. 3286, 2010 WL 3397683, at *10-11 (S.D.N.Y. Aug. 27, 2010)
(rejecting an excessive force claim based on the forcible cuffing of the plaintiff as a matter of law);
Rincon v. City of New York, No. 03 Civ. 8276, 2005 WL 646080, at *5 (S.D.N.Y. Mar. 21, 2005)
(dismissing plaintiff’s excessive force claim in which plaintiff was thrown to the ground and
handcuffed by officers with weapons drawn during a search for drugs as insufficient as a matter of
law).
Adopting a liberal reading of Plaintiff’s allegations, however, the Court cannot conclude that
Plaintiff’s claim against Defendant Bowles must be rejected as a matter of law. First, while the Court
notes that Plaintiff’s account of his arrest may contain inconsistencies and at times muddled and
extreme allegations, such weaknesses do not permit the Court to usurp the role of the jury and to deny
Plaintiff the opportunity to have a jury of his peers weigh his testimony against that of the arresting
officers. Defendants urge the Court to apply the rule from Jeffreys because Plaintiff has relied solely
on his own testimony, which is so contradictory and incredible that no reasonable juror could return a
verdict in his favor. Jeffreys, 426 F.3d at 554. However, Jeffreys only provides a “narrow exception”
to “the established rule that issues of credibility are not to be resolved by a court on a motion for
summary judgment,” Latouche, 2011 WL 1103022, at *7-8, and such an exception is only available in
“rare circumstance[s].” Jeffreys, 426 F.3d at 554. The United States Court of Appeals for the Second
Circuit has emphasized that it does “not suggest that district courts should routinely engage in
searching, skeptical analyses of parties’ testimony in opposition to summary judgment.” Rojas v.
Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011). Such skepticism is only
appropriate “in certain extraordinary cases, where the facts alleged are so contradictory that doubt is
cast upon their plausibility, the court may pierce the veil of the complaint’s factual allegations and
12
dismiss the claim.” Id. (internal citations, quotation marks, and alteration omitted).
The Court does not find that this case provides such an obvious and extraordinary situation
such that the Court should substitute its determinations of credibility for those of a jury. Defendants
certainly identify clear inconsistencies between Plaintiff’s account and objective evidence (e.g.,
Plaintiff’s identification of Officer Bottillo as “he” when in fact the Officer is a female); however,
Defendants also appear to treat conflicting witness testimony as proof of Plaintiff’s inconsistency (e.g.,
Plaintiff claims that Officer Bowles kicked him with “steel toed boots,” whereas Officer Bowles
claimed to have been wearing sneakers). Mot. at 6; see also Scott v. Harris, 550 U.S. 372, 380 (2007)
(“When opposing parties tell two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”) (emphasis added).6
Defendants attacks on Plaintiff’s credibility might well convince jurors or at least lead
reasonable jurors to view Plaintiff’s claims with skepticism. However, the Court is unconvinced that
the evidence identified by Defendants so clearly impeaches Plaintiff’s account as to cause the Court to
take the extraordinary step of finding Plaintiff incredible as a matter of law. For instance, that Plaintiff
wrote a letter to the Troy Police Department in which he failed to refer to excessive force is not
incontrovertible proof that he was not subjected to excessive force. Dkt. No. 114-1 at 78-82; cf. Mot.
6
To the extent that the Court identifies allegations by Plaintiff as actually contradicted by
objective evidence on the record as opposed to by conflicting accounts of events contained in
Defendants’ testimony, the Court may not adopt those allegations. Harris, 550 U.S. at 380. However,
the Court does not conclude that it must discredit Plaintiff’s entire Second Amended Complaint and all
factual allegations and accounts based on these inaccuracies.
13
at 6. A reasonable juror would presumably weigh this evidence,7 but the Court is unconvinced that a
reasonable juror must conclude based on the omission that no such excessive force occurred.
Further, Defendants contend that Plaintiff “appears completely normal in his mug shot” and that
this photograph should lead the Court to discredit Plaintiff’s account and rule for Defendants as a
matter of law. Mot. at 6. Not only is the Court unconvinced that Plaintiff “appears completely
normal,” but also the Court finds no claim in Plaintiff’s Complaint that he was bleeding from his face
or had suffered some injury that would necessarily have been obviously visible in a photograph taken
shortly after his arrest. The Court concludes that determining what – if anything – the mug shot shows
and whether the photographic evidence supports, contradicts, or has no bearing upon Plaintiff’s
credibility is the sort of evidentiary question that reasonable jurors could disagree about and therefore
is not the proper province of the Court’s legal decision-making at the summary judgment stage.8
Given that the Court determines that there are material questions of fact as to what degree of
force was applied during the course of Plaintiff’s arrest, the Court cannot conclude as a matter of law
that Defendant Bowles’s conduct was reasonable. Further, while the ultimate question of the
reasonableness of an officer’s conduct is one for the jury,9 to the extent that the Court credits Plaintiff’s
7
In reaching this conclusion, the Court takes no position on the ultimate admissibility at trial of
the letter.
8
In reaching this conclusion, the Court takes no position on the ultimate admissibility at trial of
the mug shot or the possible need for the Court to conduct its own assessment of the photograph in
determining its admissibility prior to or during the course of trial.
9
“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396-97. Further, “[t]he calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.” Id.
14
allegations that he was kicked and battered while subdued, the Court notes that such conduct has often
been denounced by Courts and cannot be identified as reasonable as a matter of law. See, e.g., PierreAntoine v. City of New York, No. 04-CV-6987, 2006 WL 1292076, at *4 (S.D.N.Y. May 9, 2006) (use
of force against an already subdued individual would constitute an objectively unreasonable use of
force under the Fourth Amendment); Johnson v. City of New York, No. 05-CV-2357, 2006 WL
2354815, at *5 (S.D.N.Y. Aug. 14, 2006) (denying summary judgment on claim of excessive force
during execution of a search and noting that “[w]hile not every push or shove violates the Fourth
Amendment . . . there surely would be no objective need to ‘stomp’ and ‘kick’ an individual already
under police control.” (citations and quotations omitted)); Graham v. Springer, No. 03-CV-6190, 2005
WL 775901, at *6 (W.D.N.Y. Apr. 5, 2005) (summary judgment denied because the plaintiff was
kicked while on the ground in handcuffs); Lemmo, 2011 WL 843974, at *6.10
Finally, the Court concludes that it cannot grant summary judgment to Defendant Bowles based
on his contention that the record demonstrates no injury to Plaintiff. While the Court recognizes the
importance of proof of injury to an excessive force claim, “[i]f the force used was unreasonable and
excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.”
Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987). Indeed, the United States Court of Appeals for the
Second Circuit has “permitted a plaintiff’s claim to survive summary judgment on allegations that,
during the course of an arrest, a police officer twisted her arm, ‘yanked’ her, and threw her up against a
car, causing only bruising.” Maxwell, 380 F.3d at 108 (citing Robison, 821 F.2d at 924-25). In this
10
Defendants contend that “[e]ven if Bridgeforth’s version [of events] could be believed, an
officer’s de minimis kicking of an arrestee to ascertain the location of a loaded weapon is not
objectively unreasonable.” Mot. at 11. Not only do Defendants fail to provide any citation to authority
that might support this claim, but – as the Court notes – there appears to be substantial authority that
directly contradicts this contention.
15
case, Plaintiff has alleged that he suffered injuries as a result of unreasonable and excessive force.
While his injuries might not have been severe and while the record on this issue may be thin, the Court
does not conclude that this element of the claim is so lacking as to warrant a grant of summary
judgment. See Robison, 821 F.2d at 924-25.
2. Qualified Immunity
Qualified immunity protects police officers acting in their official capacity from liability for
damages under 42 U.S.C. § 1983, “unless their actions violate clearly-established rights of which an
objectively reasonable official would have known.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999); see also Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000). Because qualified
immunity is an affirmative defense, however, “[t]he defendant must establish that he had an objectively
reasonable belief that his act violated no clearly established rights.” Young v. Selsky, 41 F.3d 47, 54
(2d Cir. 1994) (citing Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir.1993)); see also Zellner v.
Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). This “objective reasonableness” test is met if “officers
of reasonable competence could disagree [on the legality of Defendant’s actions].” Malley v. Briggs,
475 U.S. 335, 341 (1986).
The determination of whether a defendant’s conduct meets the first prong of the qualified
immunity test – that the right in question was clearly established at the time of an alleged violation – is
a question of law to be determined by the court. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 589
(1998); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); X-Men Security, Inc. v. Pataki, 196 F.3d 56,
66 (2d Cir. 1999). The second prong of the qualified immunity test – whether an objective officer
would reasonably believe that his conduct did not violate a clearly established right – is a mixed
question of law and fact. See, e.g., Lennon v. Miller, 66 F.3d 416, 422 (2d Cir. 1995); see also
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Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994). When there are no disputes about the material
facts of a case, a court should determine whether the defendant’s behavior was objectively reasonable.
Oliveira, 23 F.3d at 649. However, when there are disputes of material facts, the jury should be
required to resolve the facts. Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995). Once a court
receives a jury’s decision regarding the material facts, the court should use the facts found by the jury
to “make the ultimate legal determination whether qualified immunity attaches on those facts.”
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003).
In this case, because the Court concludes that there are material questions of fact relating to
Plaintiff’s arrest and the conduct of Defendants, the Court may not rule on the qualified immunity issue
at this point and may not grant Defendants’ Motion under this theory.
3. Defendants with No Personal Involvement
Defendants finally contend that even if the Court does not grant summary judgement based on
any of the other theories advanced, the Court should grant summary judgment as to all of the
Defendants except Defendant Bowles because they lacked personal involvement with the alleged
constitutional violation. Mot. at 10-11. Defendants argue that Defendant Bowles is the only individual
alleged by Plaintiff to have actually used excessive force against him and caused injury. Id. For the
following reasons, the Court adopts Defendants’ reasoning as to this line of argument and grants
summary judgment as to all named Defendants with the exception of Defendant Bowles.
“Proof of an individual defendant’s personal involvement in the alleged wrong is, of course, a
prerequisite to his liability on a claim for damages under § 1983.” Gaston v. Coughlin, 249 F.3d 156,
164 (2d Cir. 2001); see also Hafer v. Melo, 502 U.S. 21, 25 (1991). A plaintiff may establish “personal
involvement” by producing evidence of direct participation by a supervisor in the challenged conduct
17
or by providing evidence of a supervisory official’s: “(1) failure to take corrective action after learning
of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct,
(3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate
indifference to the rights of others by failing to act on information regarding the unlawful conduct of
subordinates.” Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003). “A complaint
based upon a violation under Section 1983 that does not allege the personal involvement of a defendant
fails as a matter of law.” Sullins v. Nassau County Jail Correctional Center, No. 12-CV-2632, 2012
WL 2458213 (E.D.N.Y. June 27, 2012) (citing Johnson v. Barney, 360 F. App’x 199 (2d Cir. 2010)).
In this case, Plaintiff has alleged some degree of involvement by each of the named Defendants;
however, the majority of the Defendants are – at this stage in the litigation – clearly vestiges of a wide
range of Plaintiff’s constitutional claims that the Court has already dismissed. While members of the
District Attorney’s staff or county clerks might theoretically have been participants in an alleged
malicious prosecution (although the Court has concluded that they were not in this case), the Court
cannot conceive of how they might have been involved in the alleged use of excessive force by
arresting officers. In his Response and Cross-Motion, Plaintiff provides no support for any sort of
supervisory liability and produces no cogent explanation for the continued presence of non-officer
Defendants in the caption of this case. As a result, all claims against non-officer Defendants are
dismissed.
As to the named officer Defendants, the Court concludes that Plaintiff has failed to provide
support for claims against officers other than Defendant Bowles sufficient to lead a reasonable jury to
find in Plaintiff’s favor. That is, as discussed in Part IV.B.1., supra, Plaintiff’s claims that his
constitutional rights were violated because Defendant Nuttal forcefully handcuffed him and that other
18
officers drew their weapons must fail as a matter of law. Absent any claims invoking supervisory
liability or enterprise liability against the other officers, therefore, the Court finds that the other Officer
Defendants lacked “personal involvement”11 in the alleged violation of Plaintiff’s Fourth Amendment
right to be free from excessive force and grants summary judgment for these Defendants.
C. Plaintiff’s Cross-Motion
In addition to responding to Defendants’ Motion for summary judgment, Plaintiff’s CrossMotion appears to seek assorted relief, particularly the reconsideration of several previous motions.
Cross-Mot. at 1-2. In arguing that a prior motion should be reconsidered, Plaintiff must overcome a
high threshold. Analytical Surveys, Inc., 2012 WL 1970389. Plaintiff has provided the Court with no
compelling reason to believe that this request is anything more than an attempt to “relitigate an issue
already decided.” Shrader, 70 F.3d at 257. Further, Plaintiff has already requested that the Court
reconsider many of these issues, and the Court has already denied this request. See Dkt. Nos. 21-22.
Given that Plaintiff has failed to point to (1) an intervening change in law; (2) the availability of
evidence not previously available; or (3) the need to correct a clear error of law or to prevent manifest
injustice, the Court denies his request for reconsideration. See Virgin Atlantic Airways, 956 F.2d at
1255.
Even construing Plaintiff’s Cross-Motion liberally, the Court is unable to identify any other
cognizable or vaguely supported claims for relief in the “combined motion” and as a result denies
Plaintiff’s Cross-Motion in its entirety.
11
The Court notes that Plaintiff argues and Defendants acknowledge that Defendants Officer
James Molesky, Sergeant David Dean, Officer Adam Mason, and Patrol Sergeant Guido Gabriel were
present at the scene of the arrest. Dkt. No. 114-1 ¶¶ 10, 18, 26. However, without more, the Court
cannot conclude that the officers’ mere presence at the scene of the arrest constitutes “personal
involvement” in Defendant Bowles alleged kicking of Plaintiff.
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V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion for summary judgment (Dkt. No. 114) is GRANTED in
part and DENIED in part, consistent with this Memorandum-Decision and Order, and that all named
Defendants other than Officer William Bowles are hereby DISMISSED from this action; and it is
further
ORDERED, that the Plaintiff’s Cross-Motion (Dkt. No. 119) is DENIED in its entirety; and
it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties.
IT IS SO ORDERED.
DATED:
July 12, 2012
Albany, New York
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