Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

LUIS LLUBERES; ERIC GILLETTE,
Plaintiffs,
v.

No. 11-CV-1346
(CFH)

CITY OF TROY; TROY POLICE DEPARTMENT;
HARRY TUTUNJIAN, Mayor of the City of Troy, in his
official and individual capacities; JOHN TEDESCO, in his
official and individual capacities; OFFICER BRANDON
CIPPERLY, in his official and individual capacities;
OFFICER CHARLES CASTLE, in his official and
individual capacities; OFFICER WILLIAM FITCH, in his
official and individual capacities; OFFICER ASHE, in his
official and individual capacities; OFFICER J. McNALL,
in his official and individual capacities; OFFICER
CHRISTOPHER PARKER, in his official and individual
capacities; OFFICER CHARLES ROCKWELL, in his
official and individual capacities; OFFICER THOMAS
HOFFMAN, in his official and individual capacities;
OFFICER ANDERSON, in his official and individual
capacities; OFFICER NEGRON EVANGELISTA, in his
official and individual capacities; OFFICER DAVID DEAN,
in his official and individual capacities; OFFICER
CARELLO SALVATORE, in his official and individual
capacities; JEFFREY PIRRO, City of Troy Public
Information Officer, in his official and individual capacities;
CHARLES SARRIS, in his official and individual capacities;
JOHN DOE and JANE DOE, representing any other
members of the Troy Police Department involved by act
or omission in the incidents giving rise to this action,
Defendants.

APPEARANCES:

OF COUNSEL:

MANN LAW FIRM, PC
Attorneys for Plaintiffs
Post Office Box 143
Latham, New York 12110

MATTHEW J. MANN, ESQ.

DREYER, BOYAJIAN LAW FIRM
Attorneys for Defendants
75 Columbia Street
Albany, New York 12210

JOHN B. CASEY, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER1
Plaintiffs Luis Lluberes (“Lluberes”) and Eric Gillette (“Gillette”) bring this action pursuant
to 42 U.S.C. § 1983 alleging that defendants, the City of Troy, Troy Police Department
(“Troy PD”), ten Troy PD officers, two public information officers of Troy, and John and Jane
Does, violated his constitutional rights under the First, Fourth, and Fourteenth
Amendments.2 Compl. (Dkt. No. 1). Plaintiffs also assert pendent state law claims. Id.
Presently pending are defendants’ and plaintiffs’ motions for summary judgment pursuant to

1

In accordance with the provisions of 28 U.S.C. §636(c) and Fed. R. Civ. P. 73, the
parties in this action consented to have the undersigned conduct any and all proceedings
in this case. Dkt. No. 38.
2

By stipulation filed February 7, 2014, the parties agreed that all claims against
defendants Mayor Tutunjian, David Dean, Salvatore Carello, and Evangelista Negron in
their individual capacities be withdrawn. Dkt. No. 59 at 1. Further, these four defendants
are not amenable to suit in their official capacities “because claims against a government
employee in his official capacity are treated as a claim against the municipality, . . . and
“[defendants are] considered an arm of the City, and therefore cannot be sued in that
capacity.” Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y. 2008) (internal
quotation marks and citations omitted). Accordingly, any and all claims against Mayor
Tutunjian, David Dean, Salvatore Carello, and Evangelista Negron are dismissed pursuant
to such.
The parties also stipulated to withdraw Counts 11, 12, and 13 of the complaint. Dkt.
No. 59 at 3. Counts 11–13 concern the Age Discrimination Act of 1975, 42 U.S.C. § 6101
et seq., New York Executive Law § 296, and New York Civil Rights Law § 40(c). Compl. at
25–30. The parties further agreed for plaintiffs to amend certain facts in their complaint,
which have been incorporated therein in this Memorandum-Decision and Order. Dkt. No.
59 at 2.
2

Fed. R. Civ. P. 56. Dkt. Nos. 60, 62. Both parties filed responses and replies. Dkt. Nos.
66, 68, 72, 74. For the following reasons, defendants’ motion is granted in part and denied
in part and plaintiffs’ motion is denied.

I. Background
At all relevant times, the allegations and events occurred in Troy, New York.

A. Lluberes
On August 29, 2010, just after midnight, Lluberes, a Rensselaer Polytechnic Institute
(“RPI”) engineering student, left a party on Thirteenth Street with a gathering of people to
attend another party on Fifteenth Street. Compl. ¶ 25; Lluberes Dep. (Dkt. No. 60-3 at
137–235) at 141, 151–56. Prior to leaving the Thirteenth Street party, Lluberes had
consumed a drink containing four to five shots of Vodka and a cup of beer and was
intoxicated. Lluberes Dep. at 151–57.
On Fifteenth Street, Lluberes entered a house located between Sage Avenue and
Peoples Avenue. Lluberes Dep. at 159–60. Inside the house, Lluberes engaged in a
physical confrontation with a RPI hockey player. Id. at 25–27. A group of RPI hockey
players escorted Lluberes out of the house and to the sidewalk. Id. at 164–66. Lluberes
became upset and testified that someone pushed him twice from behind as he walked away
from the house. Id. at 166–67, 169–74. Lluberes next recalls being handcuffed in the
middle of Fifteenth Street. Id. at 174–75. Lluberes does not recall how he became facedown on the street. Id. at 182.

3

Lluberes alleges that when he was pushed into the street, defendants and Troy PD
Police Officers Anderson, Ashe, Charles Castle (“Castle”), Brandon Cipperly (“Cipperly”),
William Fitch (“Fitch”), and J. McNall (“McNall”) accosted and arrested him. Compl. ¶¶ 7–9,
11–12, 16, 26, 30; Lluberes Dep. at 168. Lluberes denies having been told to disperse.
Compl. ¶¶ 27, 49; Lluberes Dep. at 3. During the arrest, Lluberes was thrown to the ground,
beaten by the officers with hands, batons, and booted feet, and charged with resisting arrest
pursuant to New York Penal Law § 205.30, harassment in the second degree pursuant to
New York Penal Law § 240.26(1), and disorderly conduct pursuant to New York Penal Law
§ 240.20(6). Compl. ¶¶ 29, 52; Dkt. No. 1-3 (arrest record dated 08/29/10); Dkt. No. 178
(certificate of disposition).
Specifically, Lluberes testified that when he was lying on the ground, an officer kneed
him in the back while he was struggling to bring his arms behind him. Lluberes Dep. at 177.
Lluberes recalls yelling for help when he was being handcuffed and was told to keep quiet.
Id. at 177–78. Lluberes recalls receiving three strikes to the head with a baton even though
he was already handcuffed. Id. at 179. After being hit in the head, Lluberes felt blood
coming down his face and into his mouth. Id. at 181. Lluberes received an appearance
ticket that night. Id. at 198; Dkt. No. at 60-6 at 183 (appearance ticket).
Photographs of Lluberes taken at the police station show cuts on the back of the head,
right knee, and left elbow and blood dried all over the face and head. Dkt. No. 68-11 at 2–6.
A video recording of the incident shows the tail-end of an arrest where an individual is lying
on the ground with the hands behind the back. Dkt. No. 68-10 at 150. Although unclear, it
appears a police officer is kneeling on the individual on the ground. Id. At the end of the
video, an officer approaches and asks the person filming the incident to disperse. Id.
4

Sarah Weisberg (“Weisberg”), a RPI student and an acquaintance of Lluberes, saw
Lluberes on the porch of a fraternity house when she heard a commotion. Weisberg Aff.
(Dkt. No. 68-9 at 110–13) ¶¶ 2, 5–6. Weisberg saw Lluberes moving away from the
commotion with his hands in the air. Id. ¶ 6. Four officers arrived at the scene. Id. ¶ 7. A
“large and stocky” officer came up from behind Lluberes and placed his hand on Lluberes’s
right shoulder. Id. ¶ 9. Lluberes shrugged off the officer’s hand. Id. ¶ 10. Weisberg
attested that Lluberes never shoved an officer. Id. ¶ 11. Weisberg then witnessed three
male officers beating Lluberes and heard Lluberes cry for help. Id. ¶ 14. Weisberg heard
Lluberes state that he could not put his hands behind his back because he was being kneed
in the spine. Id. Weisberg saw the stocky officer strike Lluberes three times in the back of
the head while Lluberes was on the ground. Id. ¶ 15. Weisberg attested that Lluberes did
not resist arrest. Id. ¶ 16.
Defendants proffer a different account of the August 29, 2010 incident. After midnight
on August 29, 2010, Cipperly, Fitch, Castle, and Ashe arrived at Fifteenth Street on a “park,
walk, and talk” overtime detail to patrol for rowdy RPI students. Ashe Dep. (Dkt. No. 60-5 at
61–116) at 71; Castle Dep. (Dkt. No. 60-4 at 115–66) at 129; Cipperly Dep. (Dkt. No. 60-4
at 167–232) at 180–81; Fitch Dep. (Dkt. No. 60-5 at 2–59) at 12–13; Hoffman Dep. (Dkt. No.
60-6 at 2–31) at 15. The officers were in the RPI area due to several citizen complaints
about noise volume and RPI students leaving debris in the road or destroying property.
Castle Dep. at 129; Cipperly Dep. at 181. The officers observed a large crowd on the
sidewalk and proceeded to disperse it. Ashe Dep. at 72; Castle Dep. at 129; Cipperly Dep.
at 174, 185; Fitch Dep. at 14–15.
When Cipperly attempted to disperse the crowd, Lluberes approached him, screaming
5

obscenities. Cipperly Dep. at 185. Fitch witnessed Lluberes running towards and grabbing
Cipperly. Fitch Dep. at 16, 18. Cipperly informed Lluberes to leave or Lluberes would be
arrested; however, Lluberes refused to leave. Cipperly Dep. at 185. Cipperly told Lluberes
that he was under arrest. Id. Lluberes pushed Cipperly in the chest with two hands. Ashe
Dep. at 75; Castle Dep. at 130, 136; Cipperly Dep. at 185; Fitch Dep. at 20; Dkt. Nos. 60-6
at 193 (Castle Report), at 195 (Fitch Report), at 199 (Cipperly Control/Restraint Report).
Cipperly then struck Lluberes three times in the leg with his baton as Lluberes stood
punching and kicking. Cipperly Dep. at 190; Cipperly Control/Restraint Report. Fitch
grabbed Lluberes from behind because Lluberes refused to put his hands behind his back.
Fitch Dep. at 26. Lluberes swung his arms at the officers, refused to go down, and pulled
the officers into the street. Id. at 28–29.
Ashe, Fitch, and Cipperly took Lluberes to the ground in the street. Ashe Dep. at 78;
Fitch Dep. at 29. Ashe had grabbed Lluberes by the waist and pushed him over her right
leg. Ashe Dep. at 78. Once he was on the ground, Lluberes continued to push himself off
the ground, kicking and swinging at the officers. Fitch Dep. at 30. While on the ground,
Lluberes grabbed at Cipperly’s baton and refused to put his hands behind his back. Ashe
Dep. 86–87; Fitch Dep. at 30–31; Hoffman Dep. at 13–14; Fitch Report; Cipperly
Control/Restraint Report. This led Ashe to knee Lluberes in the left side four times. Ashe
Dep. at 81. Fitch kneed Lluberes twice. Fitch Dep. at 34–41; Fitch Report. Cipperly
testified that during the struggle, he attempted to strike Lluberes in the shoulder but
because Lluberes moved, he struck Lluberes in the head. Cipperly Dep. at 191, 194;
Cipperly Control/Restraint Report. Altogether, Cipperly hit Lluberes three times in the legs,
twice in the shoulders, and once on the head. Cipperly Dep. at 194.
6

McNall drove to the scene and observed Cipperly lying on top of Lluberes on the
streets. McNall Dep. (Dkt. No. 60-5 at 118–69) at 135–38. McNall approached and struck
Lluberes in the right knee with his baton because Lluberes refused to comply with orders to
put his hands behind his back and resisted arrest. McNall Dep. at 140–42; Dkt. No. 60-6 at
191 (McNall Report).
Castle was speaking to two students when he saw Lluberes pushing Cipperly with both
hands. Castle Dep. at 130, 136. By the time Castle arrived at the incident, Lluberes was
already handcuffed. Id. at 136. Castle did not witness the arrest because a crowd of
people was in his line of vision. Id. at 139.
On May 8, 2011, at approximately 4:00 a.m., Lluberes was arrested by Troy PD and
charged with two counts of disorderly conduct of making unreasonable noise pursuant to
New York Penal Law § 240.20(2) and refusing to move pursuant to New York Penal Law §
240.20(6). Compl. ¶¶ 33, 60; Lluberes Dep. at 69, 77; see also Dkt. No. 1-4 (arrest record
dated 05/08/11); Dkt. No. 179 (certificate of disposition). Lluberes alleges that defendant
Anderson was involved in that incident. Compl. ¶¶ 17–18, 61. Lluberes testified that he
was intoxicated and walking home with a group of people. Lluberes Dep. at 207.
Tedesco and Sergeant Thomas Hoffman testified that, based on their review, the use of
force in the August 29, 2010 arrest was reasonable and justified. Tedesco Dep. (Dkt. No.
60-6 at 32–84) at 45, 48, 50–51, 69; Hoffman Dep. at 22. When Hoffman arrived at
Fifteenth Street, Lluberes was in custody in the back of a patrol car. Hoffman Dep. at 9–10.
On February 7, 2011, the Troy City Court dismissed the disorderly conduct charge
accrued from the August 29, 2010 arrest, finding the charge to be insufficiently pled on the
face of the accusatory instrument. Dkt. No. 62-6 at 117.
7

On October 21, 2011, before the Troy City Court, Lluberes pled guilty to one count of
New York Penal Law § 240.20(3) in full satisfaction of all pending charges from the August
29, 2010 and May 8, 2011 arrests. Dkt. No. 60-6 at 178–79 (certificate of disposition), 181
(plea sheet). One pending charge was pursuant to § 240.20(6), accrued on May 8, 2011.
Dkt. No. 60-6 at 181. The terms of the plea included a waiver of appeal. Id.
On or about November 19, 2010, Lluberes served a notice of claim on the City of Troy.
Compl. ¶ 44; Dkt. No. 1-1 (notice of claim). The notice of claim alleged that Lluberes
suffered from a laceration to his head and scalp which required hospitalization and suturing
as well as psychological and emotional distress. Dkt. No. 1-1.

B. Gillette
On December 30, 2010, Gillette, an engineer, had returned home from work and
consumed an estimate of three drinks of whiskey before walking to a bar. Gillette Dep. (Dkt.
No. 60-3 at 2–84) at 6, 20–22; Gillette 50-h (Dkt. No. 60-3 at 86–134) at 106. Gillette
testified that he probably also drank at the bar. Gillette Dep. at 23. After midnight, Gillette
was intoxicated, left the bar stumbling with blurry vision, and was accosted by defendants
and Troy PD Police Officers Anderson, Cipperly, Hoffman, Christopher Parker (“Parker”),
and Charles Rockwell (“Rockwell”). Compl. ¶¶ 13–15, 34–35; Gillette Dep. at 26–27,
29–30; Gillette 50-h at 107–108.3 Gillette and the officers exchanged words and Gillette
remembers an officer stating, “you must feel pretty stupid now.” Gillette Dep. at 28–29;
3

An audio file of a radio call dated December 31, 2010, reveals that Gillette’s name
was mentioned. Dkt. No. 68-10. Although the audio is unclear, plaintiffs assert that the
audio file shows a transmission stating, “highly intoxicated male stage 3 stage 4 sleeping
on stoop” and “highly intoxicated male [inaudible] medical.” Id.
8

Gillette 50-h at 114. Gillette recalls being turned around, shoved against a vehicle, thrown
to the ground, and assaulted throughout the body with hands, batons, and booted feet.
Compl. ¶¶ 73, 76; Gillette Dep. at 31, Gillette 50-h at 111–12, 123. Gillette does not recall
who had hit him or being told that he was under arrest. Gillette Dep. at 32–33. Gillette
testified that he recalls drafting a statement dated January 13, 2011, in which he wrote that
he was sitting in a snowbank when officers helped him to his feet. Id. at 44; Dkt. No. 60-3 at
136 (Gillette statement). However, he did not remember anything else about that situation.
Gillette Dep. 44. Gillette testified he would not be able to identify the officers who accosted
him because he was intoxicated. Gillette 50-h at 109.
Gillette recalls being placed in the back of a police vehicle and held at a police station.
Gillette Dep. at 33–34. The next morning, Gillette received a ticket to reappear and was
released. Id. at 37–38. In short, Gillette had physical contact with the police officers but
cannot proffer any specifics of the contact nor can he recall being arrested and processed at
the police station. Id. at 32–36.
Defendants argue a different set of facts. Defendants contend that on December 30,
2010, at approximately 1:43 a.m., Cipperly called out through a radio transmission that
Gillette was sleeping on a stairwell on Fourth Street. McNall Dep. (Dkt. No. 66-5 at
118–169) at 149; Rockwell Dep. (Dkt. No. 60-5 at 171–93) at 179. Gillette was highly
intoxicated. Parker Dep. (Dkt. No. 60-5 at 194–217) at 204; Dkt. No. 60-6 at 162 (Arrest
Report dated 12/30/10). McNall, Parker, and Rockwell responded to the scene. McNall
Dep. at 149; Rockwell Dep. at 179. Gillette was screaming in the middle of the street in the
presence of Cipperly and Parker. Cipperly Dep. (Dkt. No. 60-4 at 167–232) at 210; Dkt. No.
60-6 at 160 (Incident Report dated 12/30/10). Upon Gillette’s refusal to Cipperly’s repeated
9

orders to leave, Cipperly and Parker told Gillette that he was under arrest yet Gillette
refused to place his hands behind his back. Incident Report dated 12/30/10.
Cipperly, McNall, Parker, and Rockwell attempted to place Gillette in custody but
Gillette resisted. Dkt. No. 60-6 at 169 (Rockwell Report), 171 (McNall Report), 173
(Cipperly Report), 175 (Parker Control/Restraint Report); Rockwell Dep. at 181. Parker took
Gillette to the ground and fought with Gillette to get the hands out from underneath the
body. Parker Control/Restraint Report. Rockwell struck Gillette several times in the
shoulder with his flashlight, two of which glanced off Gillette’s shoulder and landed on the
back of his head. Rockwell Dep. at 181–82; Rockwell Report. Cipperly struck Gillette in the
upper right back with a baton because Gillette refused to comply with orders to stop
resisting and put his hands behind his back. Cipperly Report. McNall put pressure on
Gillette’s foot to stop him from kicking and when Gillette continued, McNall struck Gillette
twice in the buttocks with his baton and once in the right lower leg. McNall Dep. at 150–51;
McNall Report. Force was used until Parker handcuffed Gillette. Cipperly Dep. at 214.
Gillette was charged with disorderly conduct in violation of Penal Law § 240.20(2) and
resisting arrest in violation of Penal Law § 205.30, which were disposed by an adjournment
in contemplation of dismissal (“ACD”) in February 2011. Compl. ¶ 36; Gillette Dep. at 39,
55–56, 61–62; Arrest report dated 12/30/10; Dkt. No. 60-6 at 165 (criminal complaints sworn
to 12/30/10). Gillette maintains that he is not the type of person who would behave in the
manner as charged. Gillette Dep. at 59. As a result of the incident, Gillette contends that
he suffered from injuries to the hands, fingers, face, left shoulder, back, and neck. Compl. ¶
77; Gillette Dep. at 49–51, 53–55. Photographs taken of Gillette show a cut above the left
eyebrow. Dkt. No. 60-6 at 163.
10

Gillette alleged that on or about March 25, 2011, he served a notice of claim on the City
of Troy. Compl. ¶ 45; Dkt. No. 62-5 at 44–45 (notice of claim).

C. New York Freedom of Information Law
On October 21, 2010, plaintiffs’ counsel made requests for information pursuant to New
York Freedom of Information Law (“FOIL”). Compl. ¶ 131; Dkt. No. 1-5 (FOIL Request). On
June 6, 2011, plaintiffs’ counsel made another FOIL request. Compl. ¶ 132; Dkt. No. 1-6
(FOIL Request to Pirro).
On August 25, 2011, defendant and Public Information Officer Jeffrey Pirro, denied such
requests. Compl. ¶¶ 20, 40, 134; Dkt. No. 1-7. Pirro stated that the FOIL requests dated
June 6, 2011 and August 22, 2011 were denied due to pending litigation. Dkt. No. 1-7.
Pirro was aware that a notice of claim was filed on behalf of Lluberes and believed it
commenced a legal action. Pirro Dep. (Dkt. No. 60-6 at 143–58) at 7. On August 26, 2011,
plaintiffs’ counsel appealed the denial to defendant and Corporation Counsel Charles Sarris,
Esq. Compl. ¶ 135; Dkt. No. 1-8. On September 2, 2011, Sarris granted in part and denied
in part the appeal. Compl. ¶¶ 21, 41, 136; Dkt. No. 1-9; Sarris Dep. (Dkt. No. 60-6 at
86–141) at 45. Plaintiffs’ counsel sought reconsideration on September 14, 2011, which
Sarris denied on September 16, 2011. Compl. ¶ 137; Dkt. Nos. 1-10, 1-11.

D. Monell Claim
Plaintiffs submit a letter dated January 27, 2005 from the Honorable Chief Judge Gary
L. Sharpe to Chief Nicholas Kasier of Troy PD. Dkt. No. 68-10 at 2–3. The letter indicates
that after a recent jury trial involving Troy PD, the jurors were upset that the Troy PD “did
11

not have a commitment to investigating citizen use of force complaints. . . . It was their
distinct view . . . that there was no real effort by internal affairs to investigate those
complaints.” Dkt. No. 68-10 at 2.
By memorandum dated December 12, 2007, Tedesco wrote to then Troy Corporation
Counsel David Mitchell, indicating that the Internal Affairs’ investigation in the department
was suspect. Dkt. No. 68-10 at 5. Tedesco asked Corporation Counsel to intervene and
conduct a proper examination of a witness. Id.
Plaintiffs submit Troy PD’s General Order No. 06.01 on the use of physical force. Dkt.
No. 68-11 at 10–13. The policy states that “[p]olice officers may use only the level of
physical force necessary in the performance of their duties . . . .” Further, police officers
may use force “[t]o effect the lawful arrest of a person resisting arrest or attempting to flee
from custody . . . [or i]n self-defense or in the defense of another person.” Id. at 10.

E. Claims
Lluberes challenges the constitutionality of § 240.20(6) and contends that the individual
defendants violated his First Amendment right to assemble by enforcing the statute. Compl.
¶¶ 50, 61; Dkt. No. 59 at ¶ 2. Lluberes contends that the individual defendants violated his
(1) Fourth Amendment rights by falsely arresting and imprisoning and using excessive force
against him and (2) Fourteenth Amendment due process rights by enforcing Penal Law §
240.20(6) and failing to intervene the assaults against him.4 Compl. ¶¶ 48, 50–51, 59, 65,
4

“Due process of law is secured against invasion by the federal Government by the
Fifth Amendment and is safeguarded against state action in identical words by the
Fourteenth.” Malloy v. Hogan, 378 U.S. 1, 26 (1964) (internal quotation marks and citation
omitted). Since there are no federal defendants in this action, to the extent that plaintiffs
12

69, 96–97; Dkt. No. 59 ¶ 2. Gillette contends that the individual defendants violated his (1)
Fourth Amendment rights by falsely arresting and imprisoning and using excessive force
against him and (2) Fourteenth Amendment due process rights by failing to intervene the
assaults against him. Compl. ¶¶ 72, 74, 82. Plaintiffs also contend that certain defendants
violated their rights under NY FOIL. Compl. ¶¶ 43, 131–40.
Plaintiffs further assert Monell claims against defendants the City of Troy, Troy PD, and
Tedesco based on Tedesco’s failure to supervise, train, and discipline subordinates and
deliberate indifference to the misconduct of subordinates. Compl. ¶¶ 79–80, 84–87, 90–93;
Dkt. No. 59 ¶ 3. Specifically, plaintiffs contend that Tedesco either failed to institute written
policies on issues such as the use of force or instituted such policies but was deliberately
indifferent to their violations. Dkt. No. 59 ¶ 3. Plaintiffs also bring pendent state law claims
of false arrests, assault and battery, and excessive force against the individual defendants
and contend that the City of Troy, Troy PD, and Tedesco are liable for these claims based
on a theory of respondeat superior. Compl. ¶¶ 138–39, 143–45, 148–49, 150, 153–55, 157,
159–60, 162, 164–65, 167–69, 171–73. Plaintiffs allege that due to defendants’ actions,
they sustained physical injuries, loss of income, and emotional distress. Compl. ¶¶ 88, 98,
102.5

raise due process claims under the Fifth Amendment, such claims will be addressed as
raised under the Fourteenth Amendment.
5

To the extent plaintiffs alleged Fourteenth Amendment equal protection claims in
their complaint, such claims must be dismissed. The Fourteenth Amendment’s Equal
Protection Clause mandates equal treatment under the law. Essential to that protection is
the guarantee that similarly situated persons be treated equally. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiffs do not proffer any allegations,
nor does the record reflect the contrary, indicating how they received unequal treatment as
other similarly situated persons. Accordingly, plaintiffs have failed to allege any potential
13

Defendants asserted a counterclaim seeking reasonable attorney’s fees if they become
the prevailing party. Dkt. No. 4 ¶ 200.

II. Discussion
Defendants move for summary judgment, arguing that: (1) the arrests of Lluberes and
Gillette were grounded on probable cause; (2) defendants Anderson, Castle, Hoffman, and
Tedesco were not personally involved in the alleged violations; (3) excessive force was not
used against Lluberes and Gillette; (4) they are entitled to qualified immunity; (5) plaintiffs’
Monell claims should be dismissed; (6) Lluberes lacks standing to challenge the

Fourteenth Amendment equal protection claims.
Furthermore, in their complaint plaintiffs intimate a conspiracy claim against the
defendants. Compl. ¶¶ 48, 59, 72, 74, 84–87, 90–93. In order to support a claim for
conspiracy under §§ 1983 or 1985, there must be “(1) an agreement . . . ; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that
goal causing damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324–25 (2d Cir.
2002); Cusamano v. Sobek, 604 F. Supp. 2d 416, 468 (N.D.N.Y. 2009). An agreement
must be proven with specificity as bare allegations of a conspiracy supported only by
allegations of conduct easily explained as individual action is insufficient. See Iqbal v.
Hasty, 490 F.3d 143,177 (2d Cir. 2007); see also Gyadu v. Hartford Ins. Co., 197 F.3d
590, 591 (2d Cir. 1999). Thus, plaintiffs must “make an effort to provide some details of
time and place and the alleged effects of the conspiracy . . . [including] facts to
demonstrate that the defendants entered into an agreement, express or tacit, to achieve
the unlawful end.” Warren v. Fischl, 33 F. Supp. 2d 171, 177 (E.D.N.Y. 1999) (citations
omitted). While exact specifics are not required, “the pleadings must present facts tending
to show agreement and concerted action.” Anilao v. Spota, 774 F. Supp. 2d 457, 512–13
(E.D.N.Y. 2011) (citations omitted). Here, plaintiffs fail to provide evidence sufficient to
support a viable conspiracy claim among the defendants. There is nothing in the record to
establish that defendants had any type of agreement between them. There were no
allegations outlining with specificity when, why, or how an alleged conspiracy occurred.
Warren, 33 F. Supp. 2d at 177. Even though specifics are unnecessary, plaintiffs fail to
provide any plausible information which would lend credence to a claim of an explicit or
implicit agreement between any or all of the defendants. Anilao, 774 F. Supp. 2d at
512–13. Accordingly, plaintiffs have failed to allege any potential conspiracy claims in this
action.
14

constitutionality of Penal Law § 240.20(6);6 (7) there is no private cause of action under
FOIL and defendants Pirro and Sarris cannot be held liable under FOIL; (8) the FOIL claim
and the constitutional challenge to § 240.20(6) should be severed from the § 1983 claims;
(9) the claims of Lluberes and Gillette should be severed or bifurcated into separate trials;
and (10) John and Jane Doe defendants should be dismissed for failure to prosecute.
Plaintiffs argue for summary judgment on the following: (1) Penal Law § 240.20(6) is
unconstitutional; (2) the City of Troy and other defendants are liable for enforcing Penal Law
§ 240.20(6); (3) defendants falsely arrested plaintiffs; (4) defendants violated their NY FOIL
rights; and (5) defendants’ counterclaim should be stricken as a sanction for violating a court
order.

A. Legal Standard
A motion for summary judgment may be granted if there is no genuine issue as to any
material fact if supported by affidavits or other suitable evidence and the moving party is
entitled to judgment as a matter of law. The moving party has the burden to show the
absence of disputed material facts by informing the court of portions of pleadings,
depositions, and affidavits which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the
case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248

6

On January 4, 2012, plaintiffs advised the Office of the New York State Attorney
General (“OAG”) of their constitutional challenge to Penal Law § 240.20(6). Dkt. No. 7. By
letter dated January 19, 2012, the OAG notified this Court that it will not participate in the
action at this time. Dkt. No. 10. The OAG noted that it may defend the constitutionality of
the statute at a later appellate stage. Id.
15

(1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the
non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue
for trial. The non-moving party must do more than merely show that there is some doubt or
speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could
find in favor of the non-moving party for a court to grant a motion for summary judgment.
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223–24 (2d Cir. 1994); Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

B. Municipal Liability
This Court sua sponte addresses municipal liability and claims against defendants in
their official capacities. See Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y.
2008) (addressing such claims despite defendants’ failure to do so).
Municipalities are considered “persons” who can be sued under § 1983. Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690 (1978). “A police department is an administrative arm of
the municipal corporation.” Leland v. Moran, 100 F. Supp. 2d 140, 145–46 (2000) (citing
Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999). Further, “[a] police department
cannot sue or be sued because it does not exist separate and apart from the municipality
and does not have its own legal identity.” Id. (citing inter alia East coast Novelty Co. v. City
of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992)). Here, plaintiffs’ claims against the
City of Troy and the Troy PD are redundant. Because the Troy PD is an administrative arm
of the City of Troy, the claims asserted against the Troy PD are dismissed. The real party in
16

interest here is the City of Troy. Leland, 100 F. Supp. 2d at 145–46. Moreover, plaintiffs
are barred from suing the individual defendants in their official capacities. This is because
“claims against a government employee in his official capacity are treated as a claim against
the municipality.” Hines, 542 F. Supp. 2d at 227 (citing Hafer v. Melo, 502 u.S. 21, 25
(1991)). Thus, all claims against the individual defendants in their official capacities are
dismissed.
Accordingly, plaintiffs’ claims against the Troy PD and individual defendants in their
official capacities are dismissed from this action.

C. Personal Involvement
Defendants argue that defendants Anderson, Castle, Hoffman, and Tedesco are not
personally involved in the alleged constitutional violations.7 “‘[P]ersonal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983.’” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, supervisory officials may not be held
liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996). However, supervisory personnel may be considered “personally involved”
if:
(1) [T]he defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation through a
7

Defendants’ motion for Mayor Tutunjian on this issue need not be reached
because the parties stipulated to dismiss Mayor Tutunjian from this action. See note 2
supra.
17

report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance
of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of
[plaintiffs] by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319,
323-24 (2d Cir. 1986)).8

i. Anderson and Hoffman
Plaintiffs have failed to establish the personal involvement of either Anderson or
Hoffman in the alleged violations of their rights under the Fourth and Fourteenth
Amendments. First, plaintiffs believe that Anderson and Hoffman were present when they
were assaulted during their respective arrests. However, it is undisputed that neither
plaintiff could identify who was present at the scene because they were intoxicated.
Contrary to plaintiffs’ conclusory assertions, Hoffman attested that upon his arrival at the
August 29, 2010 arrest, Lluberes was already handcuffed and taken into custody in the back
8

Various courts in the Second Circuit have postulated how, if at all, the Iqbal
decision affected the five Colon factors which were traditionally used to determine personal
involvement. Pearce v. Estate of Longo, 766 F. Supp. 2d 367, 376 (N.D.N.Y. 2011), rev’d
in part on other grounds sub nom., Pearce v. Labella, 473 F. App’x 16 (2d Cir. 2012)
(recognizing that several district courts in the Second Circuit have debated Iqbal’s impact
on the five Colon factors); Kleehammer v. Monroe Cnty., 743 F. Supp. 2d 175 (W.D.N.Y.
2010) (holding that “[o]nly the first and part of the third Colon categories pass Iqbal’s
muster . . . .”); D’Olimpio v. Crisafi, 718 F. Supp. 2d 340, 347 (S.D.N.Y. 2010) (disagreeing
that Iqbal eliminated Colon’s personal involvement standard).
18

of a patrol vehicle. Furthermore, defendants Ashe, Castle, Cipperly, and Fitch filled out
multiple reports that do not mention Hoffman’s involvement in the arrest. Lluberes does not
point to record evidence controverting Hoffman’s testimony or the incident reports
concerning Hoffman’s involvement. Gillette has proffered no proof to substantiate
Hoffman’s presence at his arrest. Similarly, there is no record evidence to suggest that
Anderson was present during any of the plaintiffs’ arrests. Anderson merely reviewed and
signed the Gillette’s arresting paperwork prepared by other officers. Dkt. No. 60-6 at 162,
165, 167.
While “an arrestee’s ‘inability to positively identify those who allegedly violated his rights
is not per se fatal to his claims” plaintiffs do not point to any record evidence establishing
that either Anderson or Hoffman was at their arrest either before or during the time of the
alleged use of excessive force. De Michele v. City of New York, No. 09-CV-9334 (PGG),
2012 WL 4354763, at *16 (S.D.N.Y. Sept. 24, 2012) (citations omitted).9 Despite plaintiffs’
speculative assertions, it is fair to conclude that a rational factfinder could not find their favor
as the record is devoid of any evidence indicating that either Anderson or Hoffman was
present at the arrests. See, e.g., Coleman v. Hauck, No. 09-CV-1391 (GTS)(GHL), 2012
WL 4480684, at *9 (N.D.N.Y. Sept. 26, 2012) (granting summary judgment for certain
defendants on personal involvement grounds where plaintiff argued that “[a]ll named
Defendants responded to the scene where Plaintiff was repeatedly struck and kicked in the
face” but failed to point to record evidence establishing that those defendants arrived at the
scene before the use of force was applied).
9

All unpublished opinions cited to by the Court in this Memorandum-Decision and
Order are, unless otherwise noted, attached to this Order.
19

Furthermore, plaintiffs failed to proffer any evidence showing that Anderson or Hoffman
had “a realistic opportunity to intervene to prevent the harm from occurring.” De Michele,
2012 WL 4354763, at *17 (citing inter alia Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994)) (internal quotation marks omitted). As plaintiffs do not provide an issue of material
fact with respect to the presence of Anderson or Hoffman at the time of the alleged assaults,
Lluberes cannot show that Anderson or Hoffman had directly participated in the assaults or
failed to intervene in the misconduct. Moreover, plaintiffs do not allege that either defendant
created a policy or custom under which unconstitutional practices occurred or was grossly
negligent in their supervision. Colon, 58 F.3d at 873. To the extent plaintiffs allege that
Anderson and Hoffman were personally involved in enforcing an unconstitutional statute, as
discussed infra, the challenged statute is constitutional. Therefore, plaintiffs cannot
establish the personal involvement of Anderson or Hoffman in the alleged unconstitutional
actions.
Accordingly, defendants’ motion on this ground is granted.

ii. Castle
For largely the same reasons, Lluberes has failed to establish the personal involvement
of Castle. Lluberes contends that Castle was present at the scene of arrest on August 29,
2010; hence, he must have been involved in the assault. However, Castle testified that he
was speaking to two students when he saw Lluberes standing and pushing Cipperly with
both hands. By the time Castle arrived at the incident, Lluberes was already handcuffed.
Lluberes does not point to any evidence of record to the contrary or to support his
allegations. As previously noted, a plaintiff’s failure positively identify those who violated his
20

rights is not per se fatal to his claims. De Michele, 2012 WL 4354763, at *16. However,
Lluberes does not point to any record evidence indicating that Castle made physical contact
with him during the August 29, 2010 arrest. Coleman, 2012 WL 4480684, at *9. Castle did
not witness the arrest nor did he have the opportunity to intervene on behalf of Lluberes.
Thus, Lluberes cannot establish that Castle had directly participated in the alleged
constitutional violation or was deliberately indifferent to his rights. Colon, 58 F.3d at 873.
Further, Lluberes does not allege that Castle was informed of a violation through a report or
appeal, created a policy under which unconstitutional practices occurred, or was grossly
negligent in supervising any defendants. Id.
Accordingly, defendants’ motion on this ground is granted.

iii. Tedesco
In this case, plaintiffs assert a Monell claim against Tedesco based on the failure to
supervise, train, and discipline subordinates who were involved in the arrests at issue.
Plaintiffs also bring pendent state law claims of false arrests and assault and battery against
Tedesco based on a theory of respondeat superior for subordinates’ actions. It is clear that
plaintiffs’ claims against Tedesco involve Tedesco’s direct participation or gross negligence
in supervising subordinates who committed the wrongful acts. Colon, 58 F.3d at 873. Thus,
Tedesco cannot be dismissed from this action based on his lack of personal involvement.
As such, defendants’ motion on this ground is denied.

21

D. New York Penal Law § 240.20(6)
Lluberes contends that Penal Law § 240.20(6) is unconstitutional, bringing both asapplied and facial challenges. In this case, the constitutional challenge is both unpreserved
and substantively unpersuasive.

1. Waiver
“A defendant who pleads guilty unconditionally admits all elements of the formal charge
and, in the absence of court-approved reservation of issues for appeal, waives all
challenges to prosecution except those going to the court’s jurisdiction.” United States v.
Seminerio, 680 F. Supp. 2d 523, 530 (S.D.N.Y. 2010) (citing United States v. Lasaga, 328
F.3d 61, 63 (2d Cir. 2003) (holding defendant’s guilty plea waived a challenge to
constitutionality of a pornography law on Commerce Clause grounds)). Constitutional
challenges to a statute, like nonjurisdictional claims, may be waived. See United States v.
Feliciano, 223 F.3d 102, 125 (2d Cir. 2000); see also Brady v. United States, 397 U.S. 742,
757–58 (1970) (finding guilty plea waived defendant’s right to challenge constitutionality of
federal kidnaping statute).
Here, Lluberes’s constitutional challenge is unpreserved. Plaintiffs’ counsel avers that
he raised a constitutional challenge in an omnibus filing to the Troy Police Court, who
declined to address that issue. Pls.’ Reply (Dkt. No. 72) ¶ 8. First, there is no record
evidence substantiating this contention. Second, the record is devoid of any court-approved
reservation of issues for appeal. Seminerio, 680 F. Supp. 2d at 530. Third, Lluberes had
waived his appeal rights when he pled guilty to § 240.20(3) which merged and dismissed

22

other counts, including a charge for violating § 240.20(6). United States v. Stearns, 479
F.3d 175, 179 (2d Cir. 2007) (per curiam) (“By pleading guilty and waiving the right to
appeal this sentence, Stearns has waived the right to appeal [the variety of constitutional
challenges to the statute] which are fundamental to, and included in, his admission of guilt.
We, therefore, do not consider them here.”).

2. Void for Vagueness
Section 1 of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, §
1. “The vagueness doctrine is a component of the right to due process.” Farrell, 449 F.3d
at 485. “[A] statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926) (citations omitted). As the Supreme Court explained,
[f]irst, . . . we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and discriminatory
application.
Grayned, 408 U.S. at 108–09 (internal quotation marks, alterations, and citations omitted);
see also Hill v. Colorado, 530 U.S. 703, 732 (2000) (“A statute can be impermissibly vague
for either of two independent reasons. First, if it fails to provide people of ordinary
23

intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it
authorizes or even encourages arbitrary and discriminatory enforcement.”). The Supreme
Court further explicated that “where a vague statute abuts upon sensitive areas of basic
First Amendment freedoms, it operates to inhibit the exercise of those freedoms.” Grayned,
408 U.S. at 109 (internal quotation marks and citations omitted).

i. As-Applied Challenge
In the context of a vagueness challenge as-applied to the plaintiff, a two-part test is
conducted. United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993). A court first
determines “whether the statute gives the person of ordinary intelligence a reasonable
opportunity to know what is prohibited. . . .” Id. at 550 (internal quotation marks, alterations
and citations omitted). Second, the court considers “whether the law provides explicit
standards for those who apply it.” Id. Thus, plaintiffs must show that the penal statute
either fails to provide them notice of what constitutes a violation or fails to provide sufficient
guidance to those who enforce them. Dickerson v. Napolitano, 604 F.3d 732, 745 (2d Cir.
2010). The challenged statute states, “[a] person is guilty of disorderly conduct when, with
intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof: . . . (6) He congregates with other persons in a public place and refuses to comply
with a lawful order of the police to disperse.” N.Y. PENAL LAW § 240.20(6). New York courts
have construed “congregat[ing] with other persons” to mean a gathering of “at the very least
three persons.” United States v. Nelson, 500 F. App’x 90, 92 (2d Cir. 2012) (citing People v.
Carcel, 3 N.Y.2d 327, 333 (1957)).
In this case, Lluberes’s contention that § 240.20(6) is unconstitutional as applied to his
24

case is unavailing. The standard for determining whether a statute provides adequate
notice is an objective one and actual notice is not required. Dickerson, 604 F.3d at 745–46
(citation omitted). Plaintiffs argue that Penal Law § 240.20(6) is vague because it is unclear
as to what constitutes a “lawful order,” what congregations are to be dispersed, what
constitutes dispersal, how long such dispersal must continue, and the distance the parties
must disperse. Pls.’ Mem. of Law at 9. It is undisputed that at least three RPI students
were present on the sidewalk to satisfy the definition of a “congregat[ion].” Furthermore,
Lluberes’s contentions do not explain how the § 240.20(6) would fail to notify a person of
ordinary intelligence what conduct is prohibited or required.
“[P]erfect clarity and precise guidance have never been required even of regulations
that restrict expressive activity.” United States v. Williams, 553 U.S. 285, 306 (2008).
Indeed, “[w]hat renders a statute vague is not the possibility that it will sometimes be difficult
to determine whether the incriminating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is.” Id. A Kentucky disorderly conduct statute,
which mirrors § 240.20(6), has been held to be not impermissibly vague.10 Colten v.
Kentucky, 407 U.S. 104, 110 (1972). The Supreme Court in that case concluded that any
individual who is in a public place, is ordered to leave or disperse, and fails to do so, should
understand that he could be convicted for disorderly conduct. Id. The Supreme Court
continued,

10

The statute provides, “(1) A person is guilty of disorderly conduct if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(f) Congregates with other persons in a public place and refuses to comply with a lawful
order of the police to disperse . . . .” Colten v. Kentucky, 407 U.S. 104, 108 (1972) (citing
KY. REV. STAT. § 437.016(1)(f) (Supp. 1968)).
25

[t]he root of the vagueness doctrine is a rough idea of fairness.
It is not a principle designed to convert into a constitutional
dilemma the practical difficulties in drawing criminal statutes both
general enough to take into account a variety of human conduct
and sufficiently specific to provide fair warning that certain kinds
of conduct are prohibited.
Id. Lluberes does not provide any facts explaining how an individual of ordinary intelligence
in a group of at least three people would not understand that he faces a potential conviction
if he refuses a police officer’s dispersal order. As such, Lluberes has failed to show how a
person of ordinary intelligence lacks a reasonable opportunity to know what is prohibited.
Nadi, 996 F.2d 548, 550. “[W]e can never expect mathematical certainty from our
language.” Grayned, 408 U.S. at 110.
The second prong has been said to be the more important aspect of the vagueness
doctrine. Kolender v. Lawson, 461 U.S. 352, 358 (1983). “[A] court analyzing an as-applied
vagueness challenge may determine that the statute generally provides sufficient guidance
to eliminate the threat of arbitrary enforcement without analyzing more specifically whether
the particular enforcement was guided by adequate standards.” Farrell, 449 F.3d at 493
(emphasis added). If a statute fails to provide sufficient general guidance, an as-applied
vagueness challenge may still fail “if the statute’s meaning has a clear core,” id. (citing
Smith v. Goguen, 415 U.S. 566, 573, 577–78 (1974)), in which case, the inquiry becomes
“whether the conduct at issue falls so squarely in the core of what is prohibited by the law
that there is no substantial concern about arbitrary enforcement because no reasonable
enforcing officer could doubt the law’s application in the circumstances.” Id. at 494.
Here, Lluberes has failed to allege sufficient facts establishing the second prong of the
test. Lluberes contends that § 240.20(6) does not provide standards for how a police officer
26

should exercise his discretion in effectuating an arrest. Nevertheless, in the absence of
such standards, the meaning of § 240.20(6) has a clear core. Farrell, 449 F.3d at 493. The
Court of Appeals has reasoned,
In People v. Munafo, 50 N.Y.2d 326 . . . this Court stated that
“[d]isorderly conduct is a statutory creation. Intended to include
in the main various forms of misconduct which at common law
would often be prosecuted as public nuisances . . . . [A]
common thread that ran through almost all of this legislation was
a desire to deter breaches of the peace or, more specifically, of
the community’s safety, health or morals. . . . [T]his court has
equated that term with “public inconvenience, annoyance or
alarm,” the governing phrase of our current disorderly conduct
statute.” Before that, we upheld the constitutionality of the
predecessor, similarly worded disorderly conduct statute (People
v. Feiner, 300 N.Y. 391 . . .).
People v. Tichenor, 89 N.Y.2d 606, 773–74 (1997). The refusal to disperse, with either
intent or recklessness to cause inconvenience, annoyance, or alarm, falls squarely within
the statute’s prohibition of breaches of the peace; thus, it cannot be said that § 240.20(6)
encourages arbitrary enforcement. Farrell, 449 F.3d at 494. As such, Lluberes fails to meet
the second prong under Grayned.
Accordingly, defendants’ motion on this is granted.

ii. Facial Challenge
Facial vagueness challenges to statutes are generally disfavored. Dickerson, 604 F.3d
at 741 (citing inter alia, Farrell, 449 F.3d at 494 (“Federal courts as a general rule allow
litigants to assert only their own legal rights and interests, and not the legal rights and
interests of third parties.”)). “When a regulation does not threaten the exercise of
fundamental rights, one whose conduct is clearly proscribed by the regulation cannot
27

successfully challenge it for vagueness.” Farrell, 449 F.3d at 496 (internal quotation marks,
alterations and citations omitted). To raise the rare and permissible facial challenge, First
Amendment rights must be implicated. Dickerson, 604 F.3d at 742. Facial vagueness
challenges move forward “only if the challenged regulation reaches a substantial amount of
constitutionally protected conduct.” Kolender, 461 U.S. at 358 n.8 (internal quotation marks
and citations omitted). The inquiry becomes whether the penal statute “will have a
substantial chilling effect on protected conduct.” Farrell, 449 F.3d at 496 (citation omitted).
Thus, whether plaintiffs can amount a facial vagueness challenge turns on whether their
claim properly arises under the First Amendment.11 Dickerson, 604 F.3d at 742.
The First Amendment declares, in part, that “Congress shall make no law . . . abridging
the freedom of speech . . . or the right of people peaceably to assemble, and to petition the
Government for a redress of grievances.” U.S. CONST. amend. I. The Supreme Court has
held, “[t]he very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect to public affairs and to petition for a
redress of grievances.” De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937) (citing
United States v. Cruikshank, 92 U.S. 542, 552 (1875)).
Although First Amendment protections are broad, they are not absolute. Jones v.
Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (citing Regan v. Boogertman, 984 F.2d 577, 579
(2d Cir. 1993)). The Supreme Court has also held that government officials may disperse a
public demonstration where “clear and present danger of riot, disorder, interference with
11

The Second Circuit recognizes that courts generally only recognize standing for
facial challenges brought under the First Amendment. Dickerson, 604 F.3d at 742 (citing
Farrell, 449 F.3d at 495 n. 11). Claims brought outside the First Amendment confront a
more restrictive standard. Id. at 743–45.
28

traffic upon the public streets, or other immediate threat to public safety, peace, or order,
appears.” Id. (citing Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)).
In this case, Lluberes couched his facial vagueness challenge under the First
Amendment. Lluberes alleges that the vagueness of § 240.20(6) violates his right to
peaceable assembly. First, New York courts have also found § 240.20(6) to be
constitutional on its face. People v. Tichenor, 89 N.Y.2d 769, 774 (1997) (citing inter alia
People v. Todaro, 26 N.Y.2d 325, 329 (1970) (citations omitted)). Second, the statute on its
face does not prohibit peaceable assembly; rather, it prohibits opposite conduct. This facial
vagueness challenge is wholly baseless, failing to reach a substantial amount of
constitutionally protected activity.12 Kolender, 461 U.S. at 358 n. 8. Therefore, the facial
vagueness challenge is dismissed in this action.
Accordingly, defendants’ motion on this ground is granted.

3. Overbreadth
Overbreadth challenges are rooted in the First Amendment. Broadrick v. Okla., 413
U.S. 601, 611–12 (1973). They are all facial challenges “because an overbreadth challenge
by its nature assumes that the measure is constitutional as applied to the party before the
court.” Farrell v. Burke, 449 F.3d 470, 498 (2d Cir. 2006). Third-party standing is permitted
in overbreadth challenges “because of the potential deterrent effect of regulations on
speech; [such challenges] allow[] those who have not been chilled to vindicate the First
12

The Court notes that plaintiffs aver Lluberes was alone when he was leaving “a
troubled scene” on August 29, 2010. Dkt. No. 62-2. This contradicts the claim that
Lluberes was exercising his right to assemble at the time of arrest, and that such a right
was violated when he was arrested.
29

Amendment interests of those who have.” Dickerson v. Napolitano, 604 F.3d 732, 749 (2d
Cir. 2010) (internal quotation marks and citation omitted). “A clear and precise enactment
may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct.”
Grayned v. City of Rockford, 408 U.S. 104, 114 (1972) (internal quotation marks and
citations omitted).
A party may bring an overbreadth challenge if he “satisfies the [Article III] requirement of
‘injury-in-fact’ and [where] it can be expected satisfactorily to frame the issues in the case.”
Farrell, 449 F.3d at 499 (citing Sec’y of State of Md. v. Joseph H. Munson, Inc., 467 U.S.
947, 958 (1984)). To prevail on this claim, “the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Broadrick, 413 U.S. at 615.
In this case, Lluberes has failed to bring a First Amendment overbreadth challenge. In
their motion for summary judgment, aside from statements of law and legal conclusions,
plaintiffs do not convey to the Court how the penal statute is overbroad. Pls.’ Mem. of Law
at 10–11. Plaintiffs do not revisit this claim in subsequent papers to the Court. In fact, this
overbreadth challenge appears to be a mere afterthought subsequent to the filing of the
complaint as this claim was never alleged in the complaint. In light of plaintiffs’ failure to
make factual allegations satisfying Article III’s requirement of an injury-in-fact, plaintiffs
cannot state a plausible overbreadth claim against defendants. Farrell, 449 F.3d at 499.
Therefore, plaintiffs’ motion on this ground is denied.
Given the number of reasons for dismissing Lluberes’s constitutional challenge to
§ 240.02(6), any claims based on the defendants’ enforcement of § 240.02(6) are also
dismissed from this action.
30

E. False Arrest and Imprisonment
Under New York law, false arrest and false imprisonment claims are “synonymous.”
Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). Moreover, a false arrest claim under
§ 1983 has substantially the same elements of a false arrest claim under New York Law.
Harris v. City of New York, No. 09-CV-3474 (KAM), 2013 WL 4858333, at *4 (E.D.N.Y.
Sept. 10, 2013) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1980)). A false arrest
claim requires that a plaintiff show: (1) the defendant intended to confine him; (2) he was
conscious of the confinement; (3) he did not consent to the confinement; and (4) the
confinement was not otherwise privileged. Bernard v. United States, 25 F.3d 98, 102 (2d
Cir.1994).
“The existence of probable cause to arrest constitutes justification and is a complete
defense to an action for false arrest, whether that action is brought under state law or under
§ 1983.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (internal quotation
marks and citation omitted). Generally, a guilty plea is equivalent to a conviction, Saddler v.
United States, 531 F.2d 83, 85 (2d Cir. 1976) (citation omitted), and does not change the
application of the Heck rule, Magnotta v. Putnam Cnty. Sheriff, No. 13-CV-2732
(GBD/GWG), 2014 WL 705281, at *5 (S.D.N.Y. Feb. 24, 2014) (collecting cases). “By
pleading guilty . . . [a] plaintiff necessarily acknowlege[s] that he was engaged in some
unlawful activity for which the police could properly take him into custody.” Harris, 2013 WL
4858333, at *4 (citation omitted).

31

i. Lluberes
Under the “favorable termination” rule of Heck v. Humphrey, 512 U.S. 477, 487–88
(1994), if a determination favorable to the plaintiff in a § 1983 action “would necessarily
imply the invalidity of his conviction or sentence,” a plaintiff must prove that the conviction or
sentence has been reversed on direct appeal or declared invalid in order to recover
damages under § 1983. Delaney v. City of Albany, No. 12-CV-1575 (LEK/RFT), 2014 WL
701637, at *2 (N.D.N.Y. Feb. 24, 2014) (citing Heck, 512 U.S. at 483). This is so regardless
of the relief sought. Heck, 512 U.S. at 483.
Here, Lluberes’s false arrest and imprisonment claims, both state and federal, cannot
withstand a motion for summary judgment. It is undisputed that Lluberes pled guilty to one
count of disorderly conduct in full satisfaction of the charges that stemmed from arrests on
August 29, 2010 and May 8, 2011. Magnotta, 2014 WL 705281, at *5. Lluberes cannot
challenge the validity of his two arrests without vacation of his guilty plea. There is no
evidence of record showing that Lluberes moved for such vacation or that his conviction was
reversed. Lluberes’s plea constitutes probable cause for his arrests. Harris, 2013 WL
4858333, at *4. Because probable cause existed, any claims for false arrest and
imprisonment are meritless. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The
existence of probable cause to arrest constitutes justification and is a complete defense to
an action for false arrest, whether that action is brought under state law or under § 1983.”
(quotation marks and citation omitted)); Zanghi v. Inc. Vill. of Old Brookville, 752 F.2d 42, 45
(2d Cir. 1985) (“It is abundantly clear that a finding of probable cause will defeat state tort
claims for false arrest, false imprisonment and malicious prosecution.”). Thus, we do not

32

reach the issues with respect to the other elements of these claims. Lluberes is barred from
bringing false arrest and imprisonment claims in this action.
Accordingly, defendants’ motion on this ground is granted and plaintiffs’ motion on this
ground is denied.

ii. Gillette
Defendants argue they had probable cause to arrest Gillette. “Probable cause requires
an officer to have knowledge or reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has been committed by the
person to be arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal
quotation marks and citations omitted). Due to the fluidity of the concept, courts are
instructed to consider the “totality of the circumstances” in making any probable cause
determination. Id. (citations omitted). New York Penal Law § 240.20(2) provides, “[a]
person is guilty of disorderly conduct when, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof . . . he makes unreasonable noise.”
Penal Law § 205.30 provides that “[a] person is guilty of resisting arrest when he
intentionally prevents or attempts to prevent a police officer . . . from effecting an authorized
arrest of himself or another person.”
Here, factual issues exist as to whether Gillette’s arrest was effectuated with probable
cause. Defendants posit that on the night of Gillette’s arrest, Gillette was highly intoxicated,
screaming in the street, and refused to leave. Further, defendants argue that Gillette had
resisted arrest after being told that he was under arrest. To the contrary, although he does
not recall the all details of his arrest, Gillette maintains that he did not commit the type of
33

conduct as defendants alleged on the night of his arrest. This competing evidence and
disputes of facts are better resolved by a jury. In re Dana Corp., 574 F.3d 128, 152 (2d Cir.
2009). A reasonable fact finder could find the facts in Gillette’s favor. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1223–24). Thus, defendants have failed to establish the
absence of a dispute of fact with respect to the existence of probable cause for Gillette’s
arrest. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Accordingly, both defendants’ and plaintiffs’ motions on this issue are denied.

F. Excessive Force
The Fourth Amendment prohibits a law enforcement officer from using excessive force
during the course of effecting an arrest. Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010)
(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). However, in making an arrest, a law
enforcement officer “necessarily carries . . . the right to use some degree of physical
coercion or threat thereof to effect it.” Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392
U.S. 1, 22–27 (1968)). In determining whether an officer used excessive force in executing
an arrest, the Court examines whether the force used is objectively unreasonable “in light of
the facts and circumstances confronting [the officer], without regard to the officer[’s]
underlying intent or motivation.” Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (quoting
Graham, 490 U.S. at 397). This inquiry “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 (internal
quotation marks and citations omitted).

34

To measure reasonableness, the Court “consider[s] the facts and circumstances of
each particular case, including the crime committed, its severity, the threat of danger to the
officer and society, and whether the suspect is resisting or attempting to evade arrest.”
Jones, 465 F.3d at 61 (quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)).
Reasonableness is judged “from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396) (internal
quotation marks omitted). A successful excessive force claim under the Fourth Amendment
requires the use of force that is serious or harmful, not merely de minimis. Drummond v.
Castro, 522 F. Supp. 2d 667, 678–79 (S.D.N.Y. 2007). “[N]ot every push or shove” is
unconstitutionally excessive. Maxwell v. City of New York, 380 F.2d 106, 108 (2d Cir. 2004)
(internal quotation marks and citation omitted).

i. Lluberes
Lluberes contends that on August 29, 2010, defendants Anderson, Ashe, Castle,
Cipperly, Fitch, and McNall subjected him to excessive force in effectuating his arrest by
beating him with hands, batons, and booted feet.13 On the other hand, defendants contend
that the force used was reasonable.
First, as discussed supra, Anderson and Castle were not personally involved in the
arrest of and assault on Lluberes. Although Castle testified that he was in the vicinity of
Lluberes’s arrest, Lluberes cannot show that Castle was present at his arrest. The record is
also devoid of any evidence to substantiate the allegation that Anderson was present at
13

Lluberes does not contend that excessive force was used against him to
effectuate his May 8, 2011 arrest.
35

Lluberes’s arrest. Because no genuine issue of material fact exists with respect to these
claims, Lluberes’s excessive claims against Anderson and Castle must be dismissed.
Anderson, 477 U.S. at 247–48.
Second, it is undisputed that on August 29, 2010, Lluberes was intoxicated and involved
in a confrontation with certain RPI hockey players in the streets. However, Lluberes
contends that he was pushed into the streets while attempting to leave the party when he
encountered the defendant officers. Weisberg witnessed Lluberes moving away from the
crowd with his hands in the air when an officer accosted Lluberes. Weisberg saw an officer
came up from behind Lluberes and placed a hand on Lluberes’s right shoulder. Lluberes
reacted by shrugging off the hand. Weisberg attested that Lluberes never pushed or
shoved any officer. Lluberes avers that he never reached out for an officer’s baton.
Lluberes Dep. at 183.
Lluberes contends that he did not resist arrest. Lluberes further avers that while he was
lying with his face to the ground, he was struggling to bring his hands behind his back.
Although he could not identify which defendant delivered which strike, Lluberes testified that
he was thrown to the ground, kneed him in the back, and received three strikes to the head
with a baton after he was handcuffed.
Record evidence shows that defendants Ashe, Cipperly, Fitch, and McNall made
physical contact with Lluberes during the August 29, 2010 arrest. Ashe had grabbed
Lluberes by the waist, pushed him over her leg, and kneed Lluberes four times. Cipperly
had hit Lluberes three times in the leg. Cipperly also struck Lluberes several times on the
shoulder, one of which had unintentionally contacted Lluberes’s head. Fitch kneed Lluberes
twice. Lastly, McNall had observed Cipperly lying on top of Lluberes then approached and
36

struck Lluberes in the right knee with his baton, contending that Lluberes was resisting
arrest.
This competing evidence rests on the credibility of Lluberes and Weisberg on one hand
and defendants’ on the other. Crediting Lluberes and Weisberg’s account of the events, the
alleged strikes carried out by Ashe, Cipperly, Fitch, and McNall would be objectively
unreasonable and disproportional to the circumstances confronting those officers. Jones,
465 F.3d at 61. As such, a rational factfinder could find in favor of Lluberes. Gallo, 22 F.3d
at 1223–24. Therefore, the excessive force claims against Ashe, Cipperly, Fitch, and
McNall remain in this action.
Accordingly, defendants’ motion on this ground is granted for claims against Anderson
and Castle and denied for claims against Ashe, Cipperly, Fitch, and McNall.

ii. Gillette
Gillette contends that defendants Anderson, Cipperly, Hoffman, McNall, Parker, and
Rockwell subjected him to excessive force in effectuating his arrest by beating him with
hands, batons, and booted feet. On the other hand, defendants contend that the force used
was reasonable.
First, as discussed supra, Anderson and Hoffman were not personally involved in the
arrest of and assault on Gillette. The record is also devoid of any evidence to substantiate
the allegation that either Anderson or Hoffman was present at Gillette’s arrest. Because no
genuine issue of material fact exists with respect to these claims, Gillette’s excessive claims
against Anderson and Hoffman must be dismissed. Anderson, 477 U.S. at 247–48.
As for the remaining defendants, genuine issues of material fact exists as to Gillette’s
37

excessive force claim against them. It is undisputed that on December 30, 2011, Gillette
was intoxicated when he was walking home from the bar. Gillette contends that he was
accosted by officers and exchanged words with them. Gillette contends the officers turned
him around, shoved him against a vehicle, threw him to the ground, then proceeded to beat
him throughout the body with hands, batons, and booted feet. Gillette avers that he did not
resist arrest or create a disturbance in the streets.
On the other hand, Cipperly and Parker argue that they found Gillette screaming in the
middle of the street. Cipperly and Parker told Gillette to leave but Gillette resisted. The
officers proceeded to arrest Gillette and Gillette resisted. McNall and Rockwell also arrived
at the scene. Gillette continued to resist arrest. Cipperly struck Gillette in the upper right
back with a baton. McNall stepped on Gillette’s foot to stop Gillette from kicking. McNall
then struck Gillette twice in the buttocks and once in the right lower leg with a baton. Parker
brought Gillette to the ground. Rockwell struck Gillette several times in the shoulder with a
flashlight and hit Gillette’s back of the head in the process.
This too, constitutes competing evidence that rests on the credibility of Gillette on one
hand and defendants’ on the other. If Gillette’s account of the events is credited, the force
used by Cipperly, McNall, Parker, and Rockwell would be objectively unreasonable and
disproportional to the circumstances confronting those officers. Jones, 465 F.3d at 61. A
rational finder of fact could find in favor of Gillette. Gallo, 22 F.3d at 1223–24. Therefore,
the excessive force claims against Cipperly, McNall, Parker, and Rockwell remain in this
action.
Accordingly, defendants’ motion on this ground is granted for claims against Anderson
and Hoffman and denied for claims against Cipperly, McNall, Parker, and Rockwell.
38

G. Monell Claims
“Congress did not intend municipalities to be held liable [under § 1983] unless action
pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v.
Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). “[T]o prevail on a claim against a
municipality under section 1983 based on acts of a public official, a plaintiff is required to
prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory
right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused
the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). Two situations that constitute a
municipal policy are (1) where there is an officially promulgated policy, Monell, 436 U.S. at
690, and (2) a single act taken by a municipal employee who has final policymaking
authority in the realm in which the action was taken. Pembaur v. City of Cincinnati, 475 U.S.
469, 480–81 (1986). On the other hand, “an act performed pursuant to a ‘custom’ that has
not been formally approved by an appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant practice is so widespread as to have
the force of law.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404
(1997). The custom must be permanent and well-settled. City of St. Louis v. Praprotnik,
485 U.S. 112, 127 (1988) (citation omitted). Neither a policy nor a custom can be
established based on a single instance of unconstitutional conduct by a municipality
employee. See City of Okla. City v. Tuttle, 471 U.S. 808, 831 (1988) (Brennan, J.,
concurring in part and concurring in the judgment) (“To infer the existence of a city policy
39

from the isolated misconduct of a single, low-level officer, and then to hold the city liable on
the basis of that policy, would amount to permitting precisely the theory of strict respondeat
superior liability rejected in Monell . . . .”). “Conclusory allegations of a municipality’s pattern
or policy of unconstitutional behavior is insufficient to establish a Monell claim.” Devarnne v.
City of Schenectady, No. 10-CV-1037, 2011 WL 219722, at *3 (N.D.N.Y. Jan. 21, 2011)
(quoting McAllister v. New York City Policy Dep’t, 49 F. Supp. 2d 688, 705 (S.D.N.Y. 1999)).
Here, assuming there has been a constitutional injury in connection with the remaining
claims, plaintiffs have failed to show a dispute of material fact with respect to the existence
of a municipal policy causing such an injury. Plaintiffs have provided no allegations or
evidence to support an inference that the City of Troy has an official policy of tolerating
police abuse. Plaintiffs submit to the Court a General Order of the Troy PD on the use of
physical force. However, despite their conclusory statements, plaintiffs do not show how the
General Order was deficient and caused them a constitutional injury. Roe, 542 F.3d at 36;
Monell, 436 U.S. at 690. Furthermore, plaintiffs’ claim that Tedesco possess the final
policymaking authority in training officers on the use of physical force remains
unsubstantiated. Pembaur, 475 U.S. at 480–81. As such, plaintiffs cannot prove the
existence of an unconstitutional official policy for the purposes of his Monell claim. Plaintiffs
also failed to raise a question of material fact with respect to the existence of an
unconstitutional custom or practice permitted by the City of Troy. Plaintiffs submitted letters
authored by Tedesco and Judge Sharpe in an attempt to establish a custom on the use of
excessive force during arrests in Troy. However, those letters do not indicate that the
alleged custom was so widespread as to have the force of law. Bd. of Cnty. Comm’rs of
Bryan Cnty., Okla., 520 U.S. at 404. In fact, Tedesco’s letter shows his own concern for
40

how investigations in the police department were suspect. Neither letter is relevant to show
that the use of excessive force was a well-settled and permanent custom among Troy police
officers. City of St. Louis, 485 U.S. at 127. Thus, plaintiffs have failed to show the
existence of a policy or custom for their municipality liability claims.
As for theory of the failure to train, a plaintiff must show that such failure “amount[s] to
‘deliberate indifference to the rights of persons with whom the untrained employees come
into contact.” Connick v. Thompson, – U.S. –, 131 S. Ct. 1350, 1359 (2011) (altercations
and citation omitted). A plaintiff must prove that “a municipal actor disregarded a known or
obvious consequence of his action.” Id. at 1360 (internal quotation marks and citation
omitted). Further, “[a] pattern of similar constitutional violations by untrained employees is
ordinarily necessary to demonstrate deliberate indifference for the purposes of failure to
train.” Id. (internal quotation marks omitted). Here, plaintiffs do not proffer specific and
substantiated arguments involving deficiencies in Troy PD’s training programs. Further,
plaintiffs do not proffer any evidence showing how Troy policy-makers were deliberately
indifferent to “the risk that [their] employees would unconstitutionally apply [their] policies
without more training.” Amnesty Am., 361 F.3d at 129. Therefore, plaintiffs have failed to
establish how any deficiencies in the training programs caused a constitutional violation or
that the failure to train was the product of deliberate indifference. Okin v. Village of
Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 440–41 (2d Cir. 2009) (prevailing in a
failure to train claim requires “[t]he plaintiff [to] offer evidence to support the conclusion that
the training program was inadequate, not that a particular officer may be unsatisfactorily
trained or that an otherwise sound program has occasionally been negligently administered,
and that a hypothetically well-trained officer would have avoided the constitutional violation.”
41

(internal quotation marks and alterations omitted)).
Given the reasons above and the unsubstantiated nature of plaintiffs’ assertions, a
reasonable factfinder would not be able to find in plaintiffs’ favor and the Monell claims must
be dismissed. Accordingly, defendants’ motion on this ground is granted.

H. Qualified Immunity
Defendants claims that even if plaintiffs’ constitutional claims are substantiated, they are
nevertheless entitled to qualified immunity. Qualified immunity generally protects
governmental officials from civil liability “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Aiken v. Nixon, 236 F. Supp. 2d
211, 229–30 (N.D.N.Y. 2002) (McAvoy, J.), aff’d, 80 F. App’x 146 (2d Cir. 2003). However,
even if the constitutional privileges “are so clearly defined that a reasonable public official
would know that his actions might violate those rights, qualified . . . immunity might still be
available . . . if it was objectively reasonable for the public official to believe that his acts did
not violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991);
Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990) (internal citations omitted)). A court
must first determine whether, if plaintiff’s allegations are accepted as true, there would be a
constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001). Only if there is a
constitutional violation does a court proceed to determine whether the constitutional rights
were clearly established at the time of the alleged violation. Aiken, 236 F. Supp. 2d at 230.
It is well settled that between August 29, 2010 and May 8, 2011, the Fourth Amendment
protected an individual’s right against the use of excessive force. Graham v. Connor, 490
42

U.S. 386, 395 (1989). Thus, accepting all of plaintiffs’ allegations as true, qualified immunity
cannot be granted to defendants for the alleged Fourth Amendment violations. Accordingly,
defendants’ motion on this ground is denied.
However, were § 240.20(6) to have been found unconstitutional, defendants would be
entitled to qualified immunity. No court, federal or state, has yet declared New York Penal
Law § 240.20(6) to be unconstitutional. As such, it cannot be said that the defendants’
conduct violated clearly established statutory or constitutional rights of which a reasonable
person would have known. Harlow, 457 U.S. at 818; Aiken, 236 F. Supp. 2d at 229–30. In
fact, it would not be objectively reasonable for a Troy PD officer to believe that enforcing §
240.20(6) would violate an arrestee’s constitutional rights. Kaminsky, 929 F.2d at 925. This
is because, as discussed supra, New York courts have held that the statue is constitutional.
People v. Tichenor, 89 N.Y.2d 769, 774.
Accordingly, defendants’ motion on this ground is granted only as to the constitutional
challenge.

I. State Law Claims
Defendants argue that any state law claims arising out of Lluberes’s May 8, 2011 arrest
should be dismissed for failure to comply with conditions precedent to suit pursuant to New
York law. See Mohr v. City of New York, No. 12-CV-163 (LGS), 2013 WL 5988948, at *10
(S.D.N.Y. Nov. 12, 2013) (citing New York Gen. Mun. Law §§ 50-e and 50-i). However,
“[t]he Notice of Claim requirements do not apply to claims asserted against municipal
employees in their individual capacities that allege injuries resulting from intentional
wrongdoing or recklessness-misconduct for which the City has no obligation to indemnify.”
43

Matthews v. City of New York, 889 F. Supp. 2d 418, 448 n.12 (E.D.N.Y. 2012) (quoting
Brenner v. Heavener, 492 F. Supp. 2d 399, 405 (S.D.N.Y. 2007) (internal quotation marks
omitted)). Here, because plaintiffs’ false arrest and imprisonment claims involved conduct
by the individual defendants that occurred while they are acting within the scope of their
public duties, the City of Troy would have a statutory obligation to indemnify the officers and
must receive a notice of claim. Brenner, 492 F. Supp. 2d at 404 (citations omitted).
However, plaintiffs remaining state law claims are intentional torts against the individual
defendants for which the City of Troy has no obligation to indemnify. Id. at 405. Thus, the
notice of claim requirements do not apply to the assault and battery and excessive force
claims.
Accordingly, defendants’ motion on this ground is granted as to the false arrest and
imprisonment claims but denied as to the assault and battery and excessive force claims.

III. New York FOIL
Defendants argue that plaintiffs’ FOIL claims cannot stand because FOIL does not
provide a private cause of action.14
Under New York FOIL, “[e]ach agency shall . . . make available for public inspection and
copying all records, except that such agency may deny access to records or portions
thereof that [fall within an enumerated exception].” N.Y. PUB. OFF. LAW § 87(2). An agency
14

Defendants argue that plaintiffs lack standing to bring these claims and
defendants Pirro and Sarris cannot be held liable for the alleged FOIL violations. Defs.’
Mem. of Law (Dkt. No. 60-7) at 11–12. Defendants further seek to sever the FOIL claims
and the constitutional challenge to Penal Law § 240.20(6) from this action. Defs.’ Mem. of
Law (Dkt. No. 60-7) at 13–14. Because the FOIL claims are dismissed for reasons stated
herein, defendants’ remaining arguments are rendered moot.
44

has five business days of the receipt of a written FOIL request for record to “make such
record available to the person requesting it, deny such request in writing or furnish a written
acknowledgment of the receipt of such request and a statement of the approximate date . . .
when such request will be granted or denied.” Id. § 89(3)(a). “[A]ny person denied access
to a record may within thirty days appeal in writing such denial to the head, chief executive
or governing body of the entity . . . who shall within ten business days of the receipt of such
appeal fully explain in writing to the person requesting the record the reasons for further
denial, or provide access to the record sought.” Id. § 89(4)(a).
When a state agency denies an administrative appeal, the plaintiff may challenge that
denial by bringing an Article 78 proceeding under New York Civil Practice Law and Rules.
N.Y. PUB. OFF. LAW § 89(4)(b); Schuloff v. Fields, 950 F. Supp. 66, 67–68 (E.D.N.Y. 1997)
(“The appropriate vehicle for challenging denials of access guaranteed by the New York
[FOIL] is a state court proceeding pursuant to N.Y.C.P.L.R. Article 78 upon exhaustion of
administrative remedies.”) (citations omitted); see also Jenn-Ching Luo v. Baldwin Union
Free Sch. Dist., No. 12-CV-6054 (JS)(AKT), 2013 WL 4719090, at *4 (E.D.N.Y. Sept. 3,
2013) (collecting cases); Yip v. Bd. of Trustees of State Univ. of New York, No. 03-CV00959C(SR), 2004 WL 2202594, at *7 (W.D.N.Y. Sept. 29, 2004), aff’d 150 F. App’x 21 (2d
Cir. 2005) (citing N.Y. PUB. OFF. LAW § 89(4)(b)); Sank v. City University of New York, No.
94-CV-0253 (RWS), 2002 WL 523282, at *9 (S.D.N.Y. Apr. 5, 2002).
Here, this Court lacks jurisdiction to determine whether defendants violated a state law
guaranteeing the public access to official records. Schuloff, 950 F. Supp. at 67. Plaintiffs
claim they may seek damages, attorney’s fees, and costs of litigation against defendants
Pirro, Sarris, and the City of Troy, contending that defendants violated their rights under
45

FOIL. Compl. at 32; Pl.’s Mem. of Law (Dkt. No. 62-3) at 18–23. Contrary to plaintiffs’
assertion, New York FOIL does not give rise to a private cause of action to recover money
damages. Jenn-Ching Luo, 2013 WL 4719090, at *3; Yip, 2004 WL 2202594, at *7
(citations omitted); Sank, 2002 WL 523282, at *9 (citing Warburton v. State, 173 Misc. 2d
879, 881–82 (N.Y. Ct. Cl. 1997)). The appropriate vehicle for plaintiffs to pursue their FOIL
requests is to commence an Article 78 proceeding. This Court does not have jurisdiction
over an Article 78 proceeding. Yip, 2004 WL 2202594, at *7. Thus, plaintiffs’ FOIL claim
must be dismissed from this action for lack of subject matter jurisdiction and failure to state
a claim upon which relief can be granted.
Accordingly, plaintiffs’ motion on this ground is denied.

IV. Severance and Bifurcation
Defendants’ request to either sever or bifurcate the claims of Lluberes and Gillette
implicates Fed. R. Civ. P. 21 and 42.
Rule 21 of the Federal Rules of Civil Procedures governs “misjoinder and nonjoinder of
parties” and provides in part, “[o]n motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also sever any claim against a party.” FED. R.
CIV. P. 21. Under Rule 42(b), “[f]or convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more separate issues [or] claims .
. . .” FED. R. CIV. P. 42(b). “The distinction between these two rules is that separate trials
usually will result in one judgment, but severed claims become entirely independent actions
to be tried, and judgment entered thereon, independently.” Gonzalez v. City of
Schenectady, No. 00-CV-0824, 2001 WL 1217224, at *10 (N.D.N.Y. Sept. 17, 2001) (citing
46

9 Charles A. Wright & Arthur R. Miller, FED. PRACTICE AND PROCEDURE: CIVIL 2D § 2387)
(internal quotation marks and altercations omitted).
The Second Circuit has accorded trial courts broad discretion to employ either of these
rules, which are determined using the same standard. New York v. Hendrickson Bros., Inc.,
840 F.2d 1065, 1082 (2d Cir.), cert. denied, 488 U.S. 848 (1988) (citations omitted). In
exercising such discretion, the court must consider: “(1) whether the claims arise out of the
same transaction or occurrence; (2) whether the claims present some common questions of
law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4)
whether prejudice would be avoided if severance were granted; and (5) whether different
witnesses and documentary proof are required for the separate claims.”15 Gonzalez, 2001
WL 1217224, at *10 (citation omitted). In order to grant a severance of separate trials, only
one of these conditions ought to be met. Lewis v. Triborough Bridge, No. 97-CV-0607, 2000
WL 423517, at *2 (S.D.N.Y. Apr. 19, 2000) (severance); Carson v. City of Syracuse, No. 92CV-777, 1993 WL 260676, at *2 (N.D.N.Y. July 7, 1993) (bifurcation).
Defendants seek severance or a bifurcated trial for the claims of Lluberes and Gillette

15

Other courts have employed the following test:
(1) whether the issues sought to be tried separately are
significantly different from one another; (2) whether the
severable issues require the testimony of different witnesses
and different documentary proof; (3) whether the party
opposing the severance will be prejudiced if it is granted; and
(4) whether the party requesting the severance will be
prejudiced if it is not granted.

Jeanty v. Cnty. of Orange, 379 F. Supp. 2d 533, 548–49 (2005) (citation omitted); Lewis v.
Triborough Bridge, No. 97-CV-0607, 2000 WL 423517, at *2 (S.D.N.Y. Apr. 19, 2000).
47

because they are based on unrelated incidents and defendants would be prejudiced by
having to defend two distinct excessive force and false arrest claims in one trial. Defs.’
Mem. of Law at 14–15. Defendants fear that each plaintiff will improperly bolster his case
by the mere presence of each others’ claims involving some of the same officers, namely
Cipperly and McNall. Id. at 14. Further, defendants assert that moving forward in one trial
as one action will not facilitate judicial economy. Id. at 15.
In this case, severance is appropriate. Each plaintiff’s claims arise from separate
occurrences. For the most part, those occurrences involve separate individual defendants.
Further, each plaintiff’s claims do not arise from a common nucleus of operative facts. It
also appears that the overlap of witness and documentary proof is minimal. Furthermore,
defendants are correct to contend that they may be prejudiced by each plaintiff bolstering
his case due to the presence of each others’ claims involving some of the same officers.
Moreover, defendants are also prejudiced by having to defend two distinct excessive force
claims in one trial. This prejudice is not outweighed by the facilitation of judicial economy
that would be served from trying all claims in one trial. Defendants have clearly met at least
one consideration for severance of the claims. Lewis, 2000 WL 423517, at *2.
Accordingly, defendants’ motion on severing plaintiffs’ claims is granted.

V. Counterclaim
Plaintiffs move for sanctions against defendants seeking to strike defendants’
counterclaim and preclusion of certain evidence for defendants’ failure to comply with a
court order (Dkt. No. 53) to submit to plaintiffs (1) a computation of fees sought in
connection with the counterclaim and (2) an insurance policy. Pls.’ Mem. of Law at 23–24.
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Pursuant to the Federal Rules of Civil Procedure, sanctions may be awarded where
parties fail to comply with court orders or fail to attend their own depositions. FED. R. CIV. P.
37(b) & (d); N.D.N.Y.L.R. 1.1(d) (“Failure of an attorney or of a party to comply with . . .
Orders of the court, or the Federal Rules of Civil . . . Procedure shall be a ground for
imposition of sanctions.”). Such sanctions include: (1) an order establishing facts; (2) an
order precluding evidence, issues or claims; (3) an order striking a pleading; (4) staying
proceedings; (5) dismissing the action; or (6) rendering a default judgment against the
disobedient party. FED. R. CIV. P. 37(b)(2)(A)(i-vi) & (d)(3).
A district court has broad discretion to impose sanctions. Residential Funding Corp. v.
DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (citation omitted). “[C]ompliance with
discovery orders, is necessary to the integrity of our judicial process . . . part[ies] who flout[]
such orders do so at [their] peril.” Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d
Cir. 1988). In deciding an appropriate sanction, “the court may consider the full record . . .
[specifically] the willfulness of the non-compliant party; the reasons for the noncompliance;
the efficacy of lesser sanctions; the duration of the non-compliance; and whether the party
has been warned of the consequences of non-compliance.” Broadcast Music, Inc. v. Metro
Lounge & Café LLC, No. 10-CV-1149 (NAM/ATB), 2012 WL 4107807, at *2 (N.D.N.Y. July
18, 2012) (citations omitted); see also Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849,
852–54 (2d Cir. 1995). The goals of sanctions are to “ensure that a party will not benefit
from its own failure to comply . . . [, act as] specific deterrents and seek to obtain
compliance with the particular order issued[, and] . . . serve [as] a general deterrent on the
case at hand and on other litigation . . . .” Update Art, Inc., 843 F.2d at 71 (citations
omitted).
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Here, defendants’ actions do not warrant the imposition of sanctions. A review of the
record shows that in defendants’ opposition papers to plaintiffs’ motion to compel,
defendants had represented that they did not allege a counterclaim seeking damages but
rather the ability to recover reasonable attorney’s fees if they prevail in this action and that
no defendant had an insurance agreement that may satisfy any part of a judgment. Dkt.
Nos. 50 (motion to compel), 51 (affidavit in opposition). A hearing on the motions was held
on October 17, 2013 and defendants were ordered, in part, to provide plaintiffs with a
computation of attorney’s fees incurred by December 20, 2013 and a copy of an insurance
agreement for Sarris’s malpractice insurance carrier. Dkt. No. 53. Despite the Court’s
order, defendants failed to provide the computation by December 20, 2013. Defendants’
counsel explains that the failure was due to his own oversight and neglect then points to
Sarris’s deposition in which he testified that no such insurance policy exists. Defs.’ Resp.
(Dkt. No. 66-3) at 9; Dkt. No. 66-1 (computation of attorney’s fees); Sarris Dep. (Dkt. No. 606 at 86–141) at 96–97.16
A review of the record indicates to the Court that defendants have substantially
complied with the Court’s order. Dkt. No. 53. The failure to provide the computation, which
was made available on the docket on March 3, 2014, was the result of defense counsel’s
oversight and neglect. Dkt. No. 66-1. Defendants’ counsel also represented to the Court
that he sent the relevant documents to plaintiffs’ counsel on February 10, 2014. Casey Aff.
(Dkt. No. 66) ¶ 5. The Court does not find defendants’ conduct to be so egregious as to

16

Sarris testified, “[t]he City of Troy covered me, but I had no coverage with respect
to any policies in my private practice. But I was covered, as well all the other employees in
the City of Troy.” Sarris Dep. at 96.
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warrant sanctions.
Accordingly, plaintiffs’ motion on this ground is denied.

VI. John and Jane Doe Defendants
Defendants argue that dismissal of John and Jane Doe defendants is warranted due to
plaintiffs’ failure to prosecute.
Federal Rule of Civil Procedure 41(b) provides that a court may dismiss an action “[i]f
the plaintiff fails to prosecute or comply with [the Federal Rules of Civil Procedures] or a
court order . . . .” FED. R. CIV. P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626, 629
(1962); MTV Networks v. Lane, 998 F. Supp. 390, 393 (S.D.N.Y. 1998); see also
N.D.N.Y.L.R. 41.2(b). The Second Circuit has held that it is within the province of the trial
judge’s sound discretion to dismiss for want to prosecution. Staley v. Mika, No. 08-CV-0305
(GTS/RFT), 2010 WL 3907824, at *9 n.27 (N.D.N.Y. Sept. 29, 2010) (citing Merker v. Rice,
649 F.2d 171, 173 (2d Cir. 1981)).
Since a Rule 41(b) dismissal is a “harsh remedy . . . [it] is appropriate only in extreme
situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). To
determine whether dismissal for failure to prosecute is appropriate, courts should consider:
(1) the duration of plaintiff’s failure to comply with the court order,
(2) whether the plaintiff was on notice that failure to comply
would result in dismissal, (3) whether the defendant[] is likely to
be prejudiced by further delay . . . (4) a balancing of the court’s
interest in managing its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and (5) whether the judge
has adequately considered a sanction less drastic than
dismissal.
Lucas, 84 F.3d at 535; see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009)

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(citations omitted).
Here, the factors weigh in favor of dismissal of the John and Jane Doe defendants. A
review of this case’s procedural history shows that twenty-one months have passed since
the expiration of the motion-to-amend deadline on June 1, 2012. Dkt. No. 14 (Uniform
Pretrial Scheduling Order); Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177
(2d Cir. 2008) (per curiam) (dismissing action, in part, due to plaintiff’s seven-months of
inaction). Plaintiffs, who are represented by counsel, received adequate notice through
General Order #25, federal statutes and the local rules of this District, that the failure to
name and serve John and Jane Doe defendants would result in such dismissal. Dkt. No. 2;
Fed. R. Civ. P. 4(m), 41(b); N.D.N.Y.L.R. 4.1(a),(b), 5.1(f), and 41.2(a).17 The John and
Jane Doe defendants have never been served or conducted discovery. No doubt, they are
prejudiced by further delay. Dkt. No. 65. Plaintiffs contend that they intend to depose five
additional individuals who may lead to the identification of John and Jane Doe defendants.
Pl.’s Resp. (Dkt. No. 68-3) at 11. This does not do away the prejudice against the John and
Jane Doe defendants that is so evidently present. As such, there is no lesser sanction other
than dismissal that would not jeopardize the Court’s legitimate interest in managing a
congested docket with efficiency. Lucas, 84 F.3d at 535.
In the alternative, plaintiffs’ claims against the John and Jane Doe defendants should be
dismissed pursuant to Fed .R. Civ. P. 4(m). Where a defendant has not been served with

17

This District’s local rules direct that: (1) service of process must be made within
sixty days of the filing of the complaint and in a manner specified in the Federal Rules of
Civil Procedure, N.D.N.Y.L.R. 4.1(a)(b); (2) a civil complaint submitted to the Clerk for filing
must be accompanied by a summons to be served on each of named defendant, id. 5.1(f);
and (3) in the absence of an order setting any pretrial proceeding or for trial four months of
inactivity constitutes presumptive evidence of lack of prosecution, id. 41.2(a).
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process within 120 days of the filing of the complaint, the complaint must be dismissed
without prejudice as to that defendant or the court must order “service be made within a
specified time.” FED. R. CIV. P. 4(m). Here, more than 120 days have passed since
plaintiffs filed their complaint on November 14, 2011. Plaintiffs have not identified, locate,
and serve any of the John and Jane Doe defendants after the close of the discovery period,
which was January 9, 2014. Dkt. No. 58. As such, any and all claims alleged against said
defendants are dismissed from this action.
Accordingly, defendants’ motion on this ground is granted.

VII. Conclusion
For the reasons stated above, it is hereby:
1. ORDERED that plaintiffs’ motion for summary judgment (Dkt No. 62) is DENIED in its
entirety; it is further
2. ORDERED that defendants’ motion for summary judgment (Dkt No. 60) is:
A.

GRANTED as to (1) the constitutional challenge to § 240.20(6); (2)
personal involvement defense for Anderson, Castle, and Hoffman; (3)
Lluberes’s false arrest and imprisonment claims; (4) Monell claims; (5) state
torts of false arrest and imprisonment concerning Lluberes’s second arrest; (6)
NY FOIL claims; (7) severance of the claims; and (8) John and Jane Doe
defendants; and

B.

DENIED as to (1) personal involvement defense for Tedesco; (2) Gillette’s
false arrest and imprisonment claims; (3) plaintiffs’ excessive force claims; (4)
qualified immunity for the Fourth Amendment claims; (5) state torts of assault
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and battery and excessive force concerning Lluberes’s second arrest; and it is
further
3. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron
Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants,
and individual defendants in their official capacities be dismissed from this action.
4. ORDERED that Gillette’s trial will proceed as scheduled on April 28, 2014 at 9:30
a.m. Upon the conclusion of that trial, the Court will set a date for Lluberes’s trial.

It is so ordered
Dated: March 21, 2014
Albany, New York

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