Regels v. Giardono et al

Filing 42

DECISION AND ORDER granting # 24 Motion for Summary Judgment; and denying # 33 Plaintiff's Cross-Motion for Summary Judgment. The Clerk is directed to enter judgment for Defendants and close this case. Signed by Judge Glenn T. Suddaby on 6/25/15. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JOANN REGELS,
Plaintiff,
v.

1:13-CV-0638
(GTS/RFT)

PATROLMAN NICHOLAS J. GIARDONO,
Schenectady Police Dep’t; PATROLMAN
MICHAEL J. FARRAND, Schenectady Police
Dep’t; and CITY OF SCHENECTADY,
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

OLIVER LAW OFFICE
Counsel for Plaintiff
156 Madison Avenue
Albany, NY 12202

LEWIS B. OLIVER, JR., ESQ.

CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
Counsel for Defendants
20 Corporate Woods Boulevard
Albany, NY 12211

MICHAEL J. MURPHY, ESQ.
WILLIAM C. FIRTH, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Joann Regels ("Plaintiff")
against Patrolman Nicholas J. Giardono, Patrolman Michael J. Farrand and the City of
Schenectady ("Defendants"), are Defendants’ motion for summary judgment and Plaintiff’s
cross-motion for summary judgment. (Dkt. Nos. 24, 33.) For the reasons set forth below,
Defendants’ motion is granted, and Plaintiff’s cross-motion is denied.

TABLE OF CONTENTS
I.

RELEVANT BACKGROUND...............................................................................................3
A.
Plaintiff’s Claims.........................................................................................................3
B.
Statement of Undisputed Material Facts..................................................................4
1.
Events of January 2012 Through May 2012................................................4
2.
Events of June 3, 2012....................................................................................5
3.
Events of June 4, 2012–Before Calling of Police..........................................6
4.
Events of June 4, 2012–After Arrival of Police............................................8
5.
Events of June 4, 2012–After Arrival at Police Department....................16
6.
Events of June 5, 2012..................................................................................19
7.
Events of June 6, 2012..................................................................................20
8.
Events of June 13, 2012................................................................................20
9.
Plaintiff’s Criminal Proceeding...................................................................22
10.
Schenectady Police Department’s General Order 0-36.............................23
C.
Briefing on Parties’ Motions for Summary Judgment..........................................24
1.
Defendants’ Motion for Summary Judgment ...........................................24
2.
Plaintiff’s Response and Cross-Motion for Summary Judgment............29
3.
Defendants’ Reply and Response................................................................34

II.

GOVERNING LEGAL STANDARDS................................................................................37
A.
Standard Governing Motions for Summary Judgment........................................37
B.
Standards Governing Plaintiff’s Claims and Defendants’ Defenses....................39

III.

ANALYSIS.............................................................................................................................39
A.
Plaintiff’s First Claim (for Invasion of Privacy / Illegal Search)..........................39
B.
Plaintiff’s Second Claim (for False Arrest)............................................................40
C.
Plaintiff’s Third, Fifth and Ninth Claims (for False Arrest, Assault
and Battery, and Negligence)..................................................................................44
D.
Plaintiff’s Fourth Claim (for Excessive Force).......................................................44
E.
Plaintiff’s Sixth and Seventh Claims (for Malicious Prosecution).......................45
F.
Plaintiff’s Eighth Claim (for Municipal Liability).................................................46
G.
Plaintiff’s Claim for Punitive Damages...................................................................47
H.
Plaintiff’s Cross-Motion for Summary Judgment...........................................47

2

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Claims

Generally, in her Amended Complaint, Plaintiff alleges that, on June 4, 2012, Defendant
Officers entered her apartment in Schenectady without justification, falsely arrested her for
harassing her daughter, used excessive force against her in effecting that arrest (by grabbing her
and slamming her against her bed without justification, causing her to land partially on the floor),
and then maliciously prosecuted her for both harassment in the second degree and resisting arrest
(the former charge being subsequently dismissed following a jury trial, and the latter charge
being dismissed by a city court judge upon Plaintiff’s motion). (Dkt. No. 10.) Plaintiff further
alleges that Defendant City maintained an unconstitutional policy requiring that police officers
make arrests in all domestic violence cases, and that it negligently maintained the detention cell
in which she was confined for eight hours (causing her to catch and injure her arm between a
wooden cot and a cement wall). (Id.)
Based on these factual allegations, Plaintiff asserts the following nine claims against
Defendants: (1) a claim that Defendant Officers invaded her privacy and subjected her to an
illegal search under the Fourth Amendment; (2) a claim that Defendant Officers illegally detained
her under the Fourth Amendment; (3) a claim that Defendant Officers falsely arrested her under
New York State common law; (4) a claim that Defendant Officers used excessive force against
her under the Fourth Amendment; (5) a claim that Defendant Officers subjected her to assault
and battery under New York State common law; (6) a claim that Defendant Officers subjected
her to malicious prosecution under the Fourth Amendment; (7) a claim that Defendant Officers
subjected her to malicious prosecution under New York State common law; (8) a claim that
3

Defendant City is liable as a municipality by adopting and/or promulgating a policy that
encouraged and/or caused the constitutional violations alleged, specifically, a policy mandating
that police officers make an arrest when responding to calls alleging domestic violence; and (9) a
claim that Defendant City negligently maintained the detention cell in which Plaintiff was
confined, causing her personal injury, under New York State common law. (Id.)
B.

Statement of Undisputed Material Facts

The following facts are undisputed in the record currently before the Court.1
1.

Events of January 2012 Through May 2012

Plaintiff began renting her apartment at 266 State Street, Apartment B, in Schenectady in
approximately January of 2012. The front door to the apartment opens into a living room, off of
which is a bedroom. As one walks through the living room, one goes into a kitchen, through
which is a bathroom. By the kitchen, also in the back of the apartment, is a storage room used
only for storage.
Plaintiff’s adult daughter,2 Colleen Fountain, began staying with Plaintiff in early May

1

The Court notes that Local Rule 7.1(a)(3) of the District’s Local Rules of Practice
requires that the nonmoving party file a response to the moving party’s Statement of Material
Facts, which shall (1) “admit[] and/or deny[] each of the movant’s assertions in matching
numbered paragraphs,” and (2) support each denial with “a specific citation to the record where
the factual issue arises.” N.D.N.Y. L. R. 7.1(a)(3). Any responses that do neither of these things
is effectively an “admi[ssion]” of the fact asserted. Id. (“The Court shall deem admitted any
properly supported facts set forth in the Statement of Material Facts that the opposing party does
not specifically controvert.”) (emphasis in original).
2

(Dkt. No. 33, Attach. 25, at 16 [Plf.’s Depo. Tr., indicating that, as of August 20,
2014, Ms. Fountain was 31 years old]; Dkt. No. 33, Attach. 2, at ¶ 4 [Plf.’s Rule 7.1 Statement].)
4

2012, while her own apartment was being painted.3 When Ms. Fountain came to stay with
Plaintiff, she brought with her food, clothing, toiletries, a plastic dresser, garbage and cloth bags,
makeup, a blanket, a pillow and a cat. The plastic dresser had three drawers, was approximately
three feet tall, was made out of a Tupperware-like material, and had a white plastic top. When
she stayed at Plaintiff’s apartment, Ms. Fountain slept on a couch in the living room.
Plaintiff provided Ms. Fountain with a key to the apartment, which Ms. Fountain kept
during her residency there. Ms. Fountain was permitted by Plaintiff to enter the apartment and to
leave it as she pleased, even when Plaintiff was not present. While living at the apartment, Ms.
Fountain would purchase food to be consumed by both Plaintiff and her.
2.

Events of June 3, 2012

At approximately 11:00 p.m. on Sunday, June 3, 2012, Plaintiff called the Schenectady
Police Department due to an argument she was having with Ms. Fountain. During the call, she
told the dispatcher that she wanted the police to remove Ms. Fountain from her apartment.
As a result of Plaintiff’s call, two Schenectady police officers (neither of whom is a party
to this action) arrived at her apartment. One of the two officers was Officer Anthony Savignano.
Officer Savignano was present on scene for approximately 22 minutes. During that time,
Plaintiff told the officers that she wanted Ms. Fountain to leave and why.
The officers questioned Plaintiff how long Ms. Fountain had been staying at the

3

(Dkt. No. 33, Attach. 26, at 22-23 [Fountain Depo. Tr., indicating that she moved
out of her apartment because “[t]he landlord wanted to do the entire whole downstairs over”];
Dkt. No. 33, Attach. 2, at ¶¶ 5-6 [Plf.’s Rule 7.1 Statement].)
5

apartment. Plaintiff explained that Ms. Fountain had been staying there for more than a month.4
In addition, the officers were told (by either Plaintiff or Ms. Fountain) that Ms. Fountain had
personal belongings at the apartment.
Ms. Fountain told the officers that she did not want to leave the apartment. The officers
told Ms. Fountain that, because she had been there for over a month, the apartment became her
legal residence and she did not need to leave. Plaintiff informed the officers that the apartment
was not Ms. Fountain’s legal residence, which was 1329 Alden Place. However, the officers told
Plaintiff that, if Ms. Fountain had been at the apartment for 30 days, then it became her legal
residence and she did not have to leave.
The incident ended without any arrests or Ms. Fountain leaving Plaintiff’s apartment.5
3.

Events of June 4, 2012–Before Calling of Police

At approximately 8:00 a.m. or 9:00 a.m. on Monday, June 4, 2012, Plaintiff awoke,
exited her bedroom and watched television in the living room with Ms. Fountain. The two of
them ate pizza for lunch and watched television. Between noon and 2:45 p.m., Plaintiff drank
three or four beers (and part of another beer), took two Benadryl pills, probably took Prevacid,

4

(Dkt. No. 33, Attach. 3, at ¶ 20 [Plf.’s Rule 7.1 Response, stating “Plaintiff Regels
informed the officers . . . that Ms. Fountain had been staying there for over a month . . . .”]; Dkt.
No. 33, Attach. 25 at 28 [Plf.’s Depo. Tr.]; Dkt. No. 24, Attach. 6, at 13 [attaching page “40” of
Fountain’s Depo. Tr.].)
5

(Dkt. No. 33, Attach. 25 at 27-28 [Plf.’s Depo. Tr.]; Dkt. No. 24, Attach. 6, at 1315 [attaching pages “40” through “42” of Fountain’s Depo. Tr.]; Dkt. No. 24, Attach. 7, at 1
[attaching page “43” of Fountain’s Depo. Tr.]; cf. Dkt. No. 33, Attach. 2, at ¶ 33 [Plf.’s Rule 7.1
Statement].)
6

and possibly took Lexapro.6 At approximately 1:30 p.m. or 2:00 p.m., Plaintiff and Ms. Fountain
got into an argument about Ms. Fountain not leaving the apartment. Plaintiff again asked Ms.
Fountain to leave, and Ms. Fountain responded that she had no reason to leave and that she was
not going to do so.
Nonetheless, Ms. Fountain attempted to get in touch with her brother or father so that
they could pick her up and take her and her belongings from the apartment. As Ms. Fountain was
attempting to reach her brother or father, Plaintiff decided to take back some clothing from Ms.
Fountain because of the disrespect Ms. Fountain had been showing her: as a result, Plaintiff
demanded the return of the clothing that she had given to Ms. Fountain as a gift approximately
four days before (which consisted of some underwear, some shirts and possibly jeans).7
Believing the underwear was in Ms. Fountain’s dresser, Plaintiff went toward the dresser and
asked where the underwear was.8 In an effort to guard her belongings, Ms. Fountain ran over and
sat on top of her dresser and refused to remove herself from it, despite Plaintiff’s two demands
for her to do so.9 Plaintiff then grabbed Ms. Fountain’s arm, despite the fact that Ms. Fountain

6

(Dkt. No. 33, Attach. 25, at 36-41, 67 [attaching pages “36” through “39,” “42,”
and “68” of Plf.’s Depo. Tr., admitting part of fact asserted above]; Dkt. No. 33, Attach. 26, at
66-68 [Fountain’s Depo. Tr., establishing remainder of fact asserted above].)
7

(Dkt. No. 33, Attach. 3, at ¶ 24 [Plf.’s Rule 7.1 Response]; Dkt. No. 33, Attach.
25, at 42-45 [attaching pages “43” through “46” of Plf.’s Depo. Tr.]; Dkt. No. 33, Attach. 2, at ¶¶
41-42 [Plf.’s Rule 7.1 Statement].)
8

(Dkt. No. 33, Attach. 3, at ¶ 25 [Plf.’s Rule 7.1 Response, admitted or failing to
deny fact asserted above]; Dkt. No. 33, Attach. 25, at 46-47 [attaching pages “47” and “48” of
Plf.’s Depo. Tr.]; Dkt. No. 33, Attach. 2, at ¶ 42 [Plf.’s Rule 7.1 Statement].)
9

(Dkt. No. 33, Attach. 3, at ¶ 26 [Plf.’s Rule 7.1 Response, admitted or failing to
deny fact asserted with supporting record citation]; Dkt. No. 33, Attach. 25, at 47 [attaching page
“48” of Plf.’s Depo. Tr.]; Dkt. No. 33, Attach. 2, at ¶ 42 [Plf.’s Rule 7.1 Statement].)
7

had not requested help getting off the dresser or demonstrated a need for such help.10 After
Plaintiff stopped grabbing Ms. Fountain’s arm for several minutes, a red mark was visible.11
4.

Events of June 4, 2012–After Arrival of Police

At 3:20 p.m., Plaintiff walked away from Ms. Fountain and called the Schenectady Police
Department with the intention of having Ms. Fountain removed from the apartment. She told the
police dispatcher that the call of a non-emergency nature, but requested police assistance in the
removal of Ms. Fountain from her apartment. Twice during the call, she falsely stated that Ms.
Fountain was stealing her clothing. In addition, she twice stated that she had attempted to pull
Ms. Fountain off of a dresser. She also acknowledged that Ms. Fountain’s arm had a “mark” on
it as a result of Plaintiff’s attempting to pull her off of the dresser. Three times she
acknowledged that she had grabbed Ms. Fountain’s arm. Finally, she lied to the dispatcher that
she had not been drinking alcohol, and that she had been in bed all day.12
When Plaintiff called the Schenectady Police Department on June 4, 2012, she wanted

10

(Dkt. No. 33, Attach. 3, at ¶ 27 [Plf.’s Rule 7.1 Response, failing to support
partial denial with a record citation]; Dkt. No. 33, Attach. 25, at 48, 65 [attaching pages “49” and
“66” of Plf.’s Depo. Tr.]; Dkt. No. 33, Attach. 26, at 50, 54 [Fountain’s Depo. Tr.].)
11

(Dkt. No. 33, Attach. 3, at ¶ 28 [Plf.’s Rule 7.1 Response, failing to deny the
duration of the grabbing]; Dkt. No. 33, Attach. 25, at 48-49 [attaching pages “49” and “50” of
Plf.’s Depo. Tr., establishing presence of red mark after grabbing]; Dkt. No. 33, Attach. 26, at 54,
55, 56, 138 [attaching pages “54,” “55,” “56” and “138” of Fountain’s Depo. Tr., establishing
presence of red mark after grabbing]; Dkt. No. 24, Attach. 11, at 1 [Domestic Incident Report,
describing injury as “Right arm redness, minor pain”]; Dkt. No. 24, Attach. 11, at 2 [Domestic
Incident Report, attaching statement of Ms. Fountain, stating, inter alia, “My arm was red and
did hurt due to her pulling on it”].)
12

(Dkt. No. 33, Attach. 3, at ¶ 37 [Plf.’s Rule 7.1 Response, failing to deny latter
fact asserted above and/or support such a denial with an accurate record citation]; Dkt. No. 33,
Attach. 25, at 65, 115 [attaching pages “66” and “115” of Plf.’s Depo. Tr.]; Dkt. No. 30, at 2:15
to 2:23 [Defs.’ Ex. R, containing dispatch recording starting at 15:20:46 on June 4, 2012].)
8

police to come to her apartment, and she did not object to police coming to her apartment. In
fact, during the call, she was told by the dispatcher that police would be coming to her apartment
shortly and that they would be investigating the incident as described by her. Indeed, the
dispatcher specifically said to Plaintiff, “Okay, well, I’m not saying that the officers are going to
arrest you [on Ms. Fountain’s charge that you hit her]; I’m not saying they’re not; I don’t really
know; it’s at their discretion when they arrive, okay?” to which Plaintiff responded, “All right,
thank you.”13 At the time of the call, Plaintiff expected that the police would enter her
apartment.14 After Plaintiff finished the call, she went into her bedroom and Ms. Fountain
remained in the kitchen.
While driving to the location, Defendant Giardono asked the dispatcher whether there had
been a call to the same address the night before, and the dispatcher responded affirmatively. The
Remarks Detail for the call (“call remarks”) states that “co[mplainant’s] daughter is here and she
shouldnt be.” The call remarks also state that “[complainant’s daughter] is trying to take clothes
that the co[omplainant] bough[t].” The call remarks would have been sent to the computer into
Defendant Officers’ police cars at the time of dispatch, and Defendant Officers would have been
able to view all of the information on the call remarks. Officer Giardono “might have had the
unit history [up] on the computer” when he was in his police car. The unit history would show
all calls to the address to which the officer was being dispatched. If he had the unit history up, he

13

(Dkt. No. 30, at 2:50 to 2:58 [Defs.’ Ex. R, containing dispatch recording starting
at 15:20:46 on June 4, 2012].)
14

(Dkt. No. 24, Attach. 24, ¶ 40 [Defs.’ Statement of Material Facts, not supporting
denial with record citation]; Dkt. No. 33, Attach. 25, at 85 [attaching page “86” of Plf.’s Depo.
Tr., establishing fact asserted above].)
9

would have been able to view the call remarks on his computer screen in his police car.
Approximately 10 to 15 minutes after Plaintiff placed the call, Defendant Officers arrived
at her apartment, as requested by her. At the time, Defendant Farrand had been employed with
the Schenectady Police Department for more than 12 years, while Defendant Giardono had been
so employed for approximately 16 years. Defendant Farrand was the first to arrive at 266 State
Street, followed shortly by Defendant Giardono. When Defendant Giardono exited his police
car, he saw Ms. Fountain standing on the sidewalk with a male (who was her brother, Kerry
Fountain) and said, “Jesus Christ.”15
Defendant Farrand knew Ms. Fountain because he had been previously introduced to her
by their mutual friend, Dana Livingston, at a bar before the events of June 4, 2012, and
Defendant Farrand recognized Ms. Fountain. At some point before June 4, 2012, Ms. Fountain
stopped talking to Ms. Livingston.16 (Defendant Farrand did not tell Defendant Giardono that he
was acquainted with Ms. Fountain until later, when they were in the muster room at the police
station.)
Upon arriving at the scene, Defendant Officers approached Ms. Fountain on the sidewalk
outside of the apartment. Ms. Fountain recognized Defendant Ferrand, although she did not
acknowledge that fact.17 Defendant Officers spoke with Ms. Fountain about the incident
involving her and Plaintiff. At that time, while still outside of the apartment, Ms. Fountain told

15

(Dkt. No. 33, Attach. 23, at 43-44 [attaching pages “43” and “44” of Giardono’s
Depo. Tr.]; Dkt. No. 31, at “13:30:20” [Defs.’ Ex. S, containing video recording on June 4,
2012].)
16

(Dkt. No. 33, Attach. 26, at 160 [attaching page “160” of Fountain’s Depo. Tr.].)

17

(Dkt. No. 33, Attach. 26, at 158 [Fountain’s Depo. Tr.].)
10

Defendant Officers that she had been residing with Plaintiff for an extended period of time,18 and
that Plaintiff had grabbed her arm and pulled her away (twisting her arm) as items were being
removed from the apartment.19 She then asked that Plaintiff be placed under arrest.20 To Ms.
Fountain’s brother Kerry, Defendant Officers “seemed friendly toward [her] and disposed toward
arresting [Plaintiff].”21 Defendant Officers had not observed the prior incident between Plaintiff
and Ms. Fountain at the dresser.
Defendant Officers and Ms. Fountain walked upstairs to the apartment. When Defendant
Officers arrived at the apartment, Ms. Fountain let them into the apartment. After Defendant
Officers were in the apartment, Plaintiff asked them what her rights were with regard to the
clothing that she had gifted to Ms. Fountain. Defendant Officers responded that, because the
clothing had been a gift, it belonged to Ms. Fountain. After this conversation about the clothing,
Plaintiff told Defendant Giardono, “I just want her out of here.” At that point, one or both of

18

(Dkt. No. 33, Attach. 3, at ¶ 46 [Plf.’s Rule 7.1 Response, not supporting denial of
fact with citations to record evidence regarding what Ms. Fountain told Defendant Officers, but
supporting that denial with citations to record evidence regarding how long Ms. Fountain had
stayed with Plaintiff]; Dkt. No. 24, Attach. 20, at 4 [Defs.’ Answer to Interrogatory No. 3, stating
that, while outside 266 State Street, “[i]n sum or substance, . . . Colleen Fountain advised
[Defendant Officers] that she had been living with plaintiff Regels, her mother, for an extended
period of time.”]; cf. Dkt. No. 33, Attach. 26, at 40 [Fountain’s Depo. Tr., stating that on June 3,
2012, two others officers learned from Plaintiff that Ms. Fountain had living in the apartment
“[f]or . . . over a month”].)
19

(Dkt. No. 33, Attach. 3, at ¶ 46 [Plf.’s Rule 7.1 Response, admitting fact]; Dkt.
No. 33, Attach. 2, at ¶ 80 [Plf.’s Rule 7.1 Statement, asserting part of fact].)
20

(Dkt. No. 33, Attach. 3, at ¶ 46 [Plf.’s Rule 7.1 Response, admitting fact]; Dkt.
No. 33, Attach. 2, at ¶ 82 [Plf.’s Rule 7.1 Statement, asserting part of fact].)
21

(Dkt. No. 33, Attach. 5, at ¶ 15 [Kerry Fountain Affid.].)
11

Defendant Officers may have stepped into an “interior hallway.”22 (The “interior hallway” was
located between the front door of Plaintiff’s apartment and a door to the stairway to the ground
floor; no other apartments were located on the floor on which Plaintiff’s apartment and the
“interior hallway” was located.)23 Plaintiff went to her bedroom.24 When Ms. Fountain’s brother
Kerry was leaving the apartment, he closed the front door of the apartment behind him.25
Defendant Giardono asked Ms. Fountain, “So you’re willing to come down to the police
station and sit there and sign all the charges?”26 Ms. Fountain responded in the affirmative.27
Shortly thereafter, Defendant Giardono said, “Hey, Mike” (referring to Defendant Farrand), and
the two Defendant Officers began a conversation regarding a complainant’s verbal request to
place a suspect under arrest on a violation charge.28 Defendant Giardono informed Ms. Fountain
that, if she wanted Plaintiff arrested, Ms. Fountain had to advise Plaintiff that she desired her to

22

(Compare Dkt. No. 33, Attach. 25, at 78-80 [attaching pages “79” through “81” of
Plf.’s Depo. Tr.] with Dkt. No. 33, Attach. 5, at ¶ 21 [Kerry Fountain Affid.] and Dkt. No. 33,
Attach. 23, at 50-51 [attaching pages “51” and “52” of Farrand’s Depo. Tr.] and Dkt. No. 33,
Attach. 23, at 77 [attaching page “78” of Giardono’s Depo. Tr.] and Dkt. No. 33, Attach. 26, at
106-09 [attaching pages “106” through “109” of Fountain’s Depo. Tr.].)
23

(Dkt. No. 33, Attach. 5, at ¶ 19 [Kerry Fountain Affid.].)

24

(Dkt. No. 33, Attach. 25, at 79 [attaching page “80” of Plf.’s Depo. Tr.].)

25

(Dkt. No. 33, Attach. 5, at ¶ 20 [Kerry Fountain Affid.].)

26

(Dkt. No. 31, at “13:34:08” [Defs.’ Ex. S, containing video recording on June 4,

2012].)
27

(Dkt. No. 31, at “13:34:11” [Defs.’ Ex. S, containing video recording on June 4,
2012]; Dkt. No. 33, Attach. 23, at 60 [attaching page “61” of Giardono’s Depo. Tr.])
28

(Dkt. No. 31, at “13:34:25” to “13:34:50” [Defs.’ Ex. S, containing video
recording on June 4, 2012]; Dkt. No. 40, Attach. 1, at ¶ 104-05 [Defs.’ Rule 7.1 Response].)
12

be placed under arrest.29
At some point, Plaintiff (who was still in her bedroom and believed Defendant Officers
had left her apartment) realized that Defendant Officers were in her apartment.30 Plaintiff came
out of her bedroom.31 In Defendant Officers’ presence, Ms. Fountain stated that she wanted
Plaintiff arrested for grabbing her arm and for attempting to push her off of the dresser.32 Ms.
Fountain did not place Plaintiff under arrest but requested that she be placed under arrest. Ms.
Fountain was not forced or otherwise compelled to request that Defendant Officers arrest
Plaintiff; she did not tell them that she did not wish Plaintiff to be arrested. While Defendant
Officers were inside of her apartment, Plaintiff did not deny having grabbed Ms. Fountain's arm
and in fact admitted having done so.
Defendant Officers informed Plaintiff that Ms. Fountain wanted her to be arrested.
Defendant Giardono advised Plaintiff that she was being placed under arrest on the charge of

29

(Dkt. No. 33, Attach. 26, at 79 [attaching page “79” of Fountain’s Depo. Tr.]; Dkt.
No. 33, Attach. 24, at 53, 79 [attaching pages “54” and “79” of Def. Farrand’s Depo. Tr.]; cf.
Dkt. No. 33, Attach. 2, at ¶ 141 [Plf.’s Rule 7.1 Statement, asserting fact, although not supporting
assertion with accurate record citation].)
30

(Dkt. No. 33, Attach. 25, at 79-83 [attaching pages “80” through “84” of Plf.’s

Depo. Tr.].)
31

(Dkt. No. 33, Attach. 25, at 83 [attaching page “84” of Plf.’s Depo. Tr.].)

32

(Dkt. No. 33, Attach. 26, at 101-02 [Fountain’s Depo. Tr.]; Dkt. No. 33, Attach.
23, at 58, 80 [attaching pages “59” and “81” of Giardono’s Depo. Tr.]; Dkt. No. 33, Attach. 24,
at 53, 79 [attaching pages “54” and “79” of Def. Farrand’s Depo. Tr.]; Dkt. No. 33, Attach. 3, ¶
50 [Plf.’s Rule 7.1 Response, stating that, inside the apartment, “Colleen Fountain stated words
to the effect that she wanted her mother arrested to the police officers . . .”], accord, Dkt. No. 33,
Attach. 2, at ¶ 142 [Plf.’s Rule 7.1 Statement].)
13

Harassment. Plaintiff asked Defendant Officers, “[H]ow did you get in my apartment?”33 One of
Defendant Officers responded, “Your daughter . . . let us in.”34 Plaintiff said, “[S]he doesn’t live
here.”35 Plaintiff then asked Defendant Officers for a warrant to be in her apartment.36
Defendant Officers responded, “We don’t need one.”37 Plaintiff told Defendant Officers
“goodbye” and that they could leave now; she then went into her bedroom and tried to close the
door on them.38 As she did so, she started yelling.39
Defendant Officers followed Plaintiff into the bedroom for the purpose of placing her
under arrest. When Defendant Officers came into Plaintiff’s bedroom, one or both of them may
have said, “You’re going to jail.”40 One or both of them may have also thrown Plaintiff onto her

33

(Dkt. No. 33, Attach. 25, at 84 [attaching page “85” of Plf.’s Depo. Tr.].)

34

(Dkt. No. 33, Attach. 25, at 84 [attaching page “85” of Plf.’s Depo. Tr.].)

35

(Dkt. No. 33, Attach. 25, at 84 [attaching page “85” of Plf.’s Depo. Tr.].)

36

(Dkt. No. 33, Attach. 25, at 84 [attaching page “85” of Plf.’s Depo. Tr.].)

37

(Dkt. No. 33, Attach. 25, at 86 [attaching page “87” of Plf.’s Depo. Tr.].)

38

(Dkt. No. 33, Attach. 3, at ¶ 54 [Plf.’s Rule 7.1 Response, admitting facts asserted
above], accord, Dkt. No. 33, Attach. 2, at ¶ 148 [Plf.’s Rule 7.1 Statement]; Dkt. No. 33, Attach.
25, at 88 [attaching page “89” of Plf.’s Depo. Tr.]; Dkt. No. 33, Attach. 23, at 75, 76, 78, 81, 82
[attaching pages “76,” “77,” “79,” “82,” and “83” of Giardono’s Depo. Tr.]; Dkt. No. 33, Attach.
24, at 52, 63-64 [attaching pages “53,” “64” and “65” of Farrand’s Depo. Tr.]; Dkt. No. 33,
Attach. 20 [Ferrand’s Criminal Information]; Dkt. No. 24, Attach. 15, at 2 [Ferrand’s Use of
Force Report]; Dkt. No. 24, Attach. 16, at 2 [Giardono’s Use of Force Report]; Dkt. No. 24,
Attach. 11, at 1 [Domestic Incident Report].)
39

(Compare Dkt. No. 24, Attach. 24, at ¶ 54 [Defs.’ Rule 7.1 Statement, asserting
fact and supporting it with accurate record citations] with Dkt. No. 33, Attach. 3, at ¶ 54 [Plf.’s
Rule 7.1 Response, denying fact but not supporting denial with accurate record citation]; see also
Dkt. No. 31, at “13:35:22” [Defs.’ Ex. S, containing video recording on June 4, 2012].)
40

(Dkt. No. 33, Attach. 25, at 93 [Plf.'s Depo. Tr.].)
14

bed, crisscrossed her legs and held them.41 At some point, Defendant Giardono told Plaintiff to
place her hands behind her back.42 In an effort to compel her to place her hands behind her back,
Defendant Officers grabbed the arms of Plaintiff, who was facedown on the bed.43 As Defendant
Giardono was attempting to place Plaintiff’s hands behind her back, she managed to pull her
wrist free from his grasp.44 At some point, one or both of Defendant Officers bent one of

41

(Compare Dkt. No. 33, Attach. 25, at 89-91 [attaching pages “89” to “91” of Plf.’s
Depo. Tr.] with Dkt. No. 24, Attach. 13, at 16, 17, 19 [attaching pages “84,” “85” and “88” of
Giardono’s Depo. Tr.] and Dkt. No. 33, Attach. 24, at 65-66 [attaching pages “66” and “67” of
Farrand’s Depo. Tr.] and Dkt. No. 24, Attach. 15 [Ferrand’s Use of Force Report, stating, inter
alia, “Subject also kicked at us after hopping on her bed”] and Dkt. No. 24, Attach. 16
[Giardono’s Use of Force Report, stating, inter alia, “Subject then jumped on bed and started to
push and kick at both officers”].)
42

(Dkt. No. 33, Attach. 24, at 67 [attaching page “68” of Farrand’s Depo. Tr.]; Dkt.
No. 24, Attach. 13, at 18-19 [attaching pages “87” and “88” of Giardono’s Depo. Tr.]; Dkt. No.
24, Attach. 14 [Ferrand’s Statement]; Dkt. No. 24, Attach. 15, at 2 [Ferrand’s Use of Force
Report]; Dkt. No. 33, Attach. 3, at ¶ 56 [Plf.’s Rule 7.1 Response, denying fact but supporting
denial with citation to page “92” of her deposition transcript, wherein she responded, “I don’t
recall” to the question, “At any point were you directed to put your hands behind your back”]
[emphasis added].) The Court notes that “a non-movant cannot create a genuine dispute of
material fact by merely denying knowledge of that fact.” Binghamton-Johnson City Joint Sewage
Bd v. Am. Alternative Ins. Corp., 12-CV-0553, 2014 WL 4715618, at *4, n.2 (N.D.N.Y. Sept. 22,
2014) (Suddaby, J.) (citing cases).
43

(Dkt. No. 33, Attach. 24, at 65-67 [attaching pages “66” through “68” of
Farrand’s Depo. Tr.]; Dkt. No. 24, Attach. 13, at 18-19 [attaching pages “87” and “88” of
Giardono’s Depo. Tr.]; Dkt. No. 24, Attach. 15, at 2 [Ferrand’s Use of Force Report]; Dkt. No.
24, Attach. 16, at 2 [Giardono’s Use of Force Report]; Dkt. No. 33, Attach. 3, at ¶ 56 [Plf.’s Rule
7.1 Response, failing to deny fact asserted above]; Dkt. No. 33, Attach. 25, at 92-93 [Plf.’s Depo.
Tr., stating that, although she could not recall if “[a]t any point [she was] directed to put [her]
hands behind [her] back,” she did recall that “the shorter [officer]” “took . . . [her] arm” as she
lay facedown half on the bed and half on the floor].)
44

(Dkt. No. 24, Attach. 13, at 21 [attaching page “90” of Giardono’s Depo. Tr.];
Dkt. No. 24, Attach. 15, at 2 [Ferrand’s Use of Force Report]; Dkt. No. 24, Attach. 11, at 1
[Domestic Incident Report]; Dkt. No. 33, Attach. 3, at ¶ 57 [Plf.’s Rule 7.1 Response, failing to
support denial with a record citation].)
15

Plaintiff’s arms behind her back.45 In addition, one or both of Defendant Officers may have held
one of Plaintiff’s arms down with his knee.46 Defendant Giardono was able to grab Plaintiff’s
wrist and put it behind her back in order to handcuff her; and Defendant Farrand was able to put
handcuffs on Plaintiff. The struggle to put Plaintiff in handcuffs did not last very long.
One or both Defendant Officers stood her up by lifting her arms.47 Defendant Giardono
told Plaintiff, “[P]ut your shoes on; let’s go or you are going barefoot.” Defendant Officers
walked Plaintiff down the hallway and downstairs to a police vehicle, dragging the tops of her
feet when she did not keep pace.48 As they were doing so, Defendant Farrand told Plaintiff (who
was in her pajamas and bathrobe), “[I]t’s a little late to worry about your appearance.” Once
Plaintiff reached the police cars, someone handed her a pair of slippers.
5.

Events of June 4, 2012–After Arrival at Police Department

Plaintiff was transported from her apartment to the Schenectady Police Department. She
was brought inside and was taken back to speak with a female correction officer. The female

45

(Compare Dkt. No. 33, Attach. 25, at 90, 93 [Plf.'s Depo. Tr., characterizing act as
“twisting”] with Dkt. No. 33, Attach. 24, at 66-68 [attaching pages “67” through “69” of
Farrand’s Depo. Tr., characterizing act “get[ting] her hands behind her back”].)
46

(Compare Dkt. No. 33, Attach. 25, at 92-93 [Plf.'s Depo. Tr., stating that, at some
point, the shorter of the two officers “kneed [Plaintiff] in [her] back like holding [her] arm
down,” “like he was holding [her] arm with his knee”] with Dkt. No. 33, Attach. 23, at 87
[attaching page “91” of Giardono’s Depo. Tr., denying that he “put his knee [on] [Plaintiff’s]
back in order to cuff her”] [emphasis added] and Dkt. No. 33, Attach. 24, at 69 [attaching page
“70” of Farrand’s Depo. Tr., not recalling if Officer Giardono put his knee on Plaintiff’s back in
order to her handcuff her].)
47

(Dkt. No. 33, Attach. 25, at 94 [Plf.'s Depo. Tr.]; Dkt. No. 33, Attach. 24, at 69-70
[attaching pages “70” and “71” of Farrand’s Depo. Tr.].)
48

(Dkt. No. 33, Attach. 25, at 94, 95, 97 [Plf.'s Depo. Tr.]; Dkt. No. 33, Attach. 24,
at 69-70 [attaching pages “70” and “71” of Farrand’s Depo. Tr.].)
16

correction officer asked Plaintiff how she had gotten all the marks on her arms; and Plaintiff
responded that the marks on her arm were from the police officers lifting her up and dragging her
out of her apartment. After Plaintiff told the correction officer how many beers she had
consumed and that she had taken Benadryl to control her allergies, the correction officer told
Plaintiff that she would “be a good one tonight; you’ll be asleep.” The correction officer warned
her about the “night correction officer,” telling her to keep her mouth shut and “[D]on’t ask for
nothing.”49
During Plaintiff’s booking, Ms. Fountain appeared at the Schenectady Police Department
for the purpose of executing certain documents charging Plaintiff in connection with the incident
that had occurred at the apartment. She was met by one of the two Defendant Officers.
On one occasion during that meeting, Ms. Fountain may have said to the Defendant
Officer, “If I wanted to[,] could I have the charges dropped?”50 The Defendant Officer (who
apparently was Defendant Giardono) did not interpret this question (if it was asked of him) as
either a statement that she wanted to drop the charges or a request to drop the charges.51 A heavy
female officer appeared and stated that it was too late for Ms. Fountain to drop the charges
because Plaintiff had already been charged with resisting arrest.52

49

(Dkt. No. 33, Attach. 25, at 123 [attaching page “124” of Plf.'s Depo. Tr.].)

50

(Dkt. No. 33, Attach. 26, at 131, 141-42 [attaching pages “131” and “141” of
Fountain’s Depo. Tr.].)
51

(Dkt. No. 33, Attach. 23, at 106-107 [attaching pages “110” and “111” of
Giardono’s Depo. Tr.].)
52

(Dkt. No. 33, Attach. 26, at 131-32 [attaching pages “131” and “132” of
Fountain’s Depo. Tr.]; Dkt. No. 33, Attach. 25, at 124 [attaching page “125” of Plf.’s Depo.
Tr.].)
17

Ms. Fountain signed a statement charging Plaintiff with Harassment in the Second
Degree, and stating, in pertinent part, as follows:
On [June 4, 2012] . . . [Plaintiff] did intentionally, knowingly and
unlawfully commit the offense of Harassment in the Second Degree when
she did grab deponent around the right arm and forcefully pull on it. Said
actions by [Plaintiff] did cause the deponent annoyance and alarm. The
deponent did have noticeable redness around the arm.53
Ms. Fountain also executed a Domestic Incident Report, which stated, in pertinent part, as
follows:
[Plaintiff] grabbed her arm and squeezed it trying to remove her. [Plaintiff]
did resist officers when she was advised she was going to be arrested.
[Plaintiff] did slam the door shut while officer was in doorway. [Plaintiff]
then jumped on the bed and kicked and pushed officers. [Plaintiff] also
refused to place her hands behind her back.
Ms. Fountain also signed a Supporting Deposition, which complained that Plaintiff "grabbed
[her] right arm and pulled it," to the point of inflicting pain and causing redness. When Ms.
Fountain executed the three above-referenced documents, she understood that she was
complaining that Plaintiff had harassed her.
Officer Farrand executed a Criminal Information charging Plaintiff with the misdemeanor
of Resisting Arrest, which alleged as follows, in pertinent part:

53

(Compare Dkt. No. 33, Attach. 26, at 126-27 [Fountain’s Depo. Tr.] and Dkt. No.
24, Attach. 10 [Fountain’s Statement] with Dkt. No. 33, Attach. 3, at ¶ 65 [Plf.’s Rule 7.1
Response, denying fact but supporting denial with only citation to pages 133 and 134 of Ms.
Fountain’s deposition transcript, in which states she does not recall having read before a portion
of a separate document (which is insufficient to create a genuine dispute of fact), and she states
she was told before signing the statement that it was too late for her to drop the charges because
Plaintiff had already incurred another charge (which does not actually controvert the fact
asserted)].)
18

[Plaintiff] attempted to close a bedroom door on the deponent after she
was instructed she was under arrest. [Plaintiff] also did refuse to comply
[with] verbal commands to place her hands behind her back and flailed her
arms in an attempt to get away. [Plaintiff] was taken into custody after a
brief struggle.
6.

Events of June 5, 2012

Eventually on June 4, 2012, Plaintiff was placed in a holding cell at the Schenectady
Police Department. The cell contained a toilet and a cot against the wall (which was the only
furniture on which to lie). The cot or bench was constructed of wood and was approximately two
feet wide and five feet long. The holding cell wall was constructed of steel. The gap between
the cot and the cell wall was approximately three to four inches wide. The bench was supported
by two steel angle brackets, so no posts or legs connected it to the floor.
Plaintiff lay down on the cot and fell asleep for probably five or six hours. She awoke
and realized that her left arm was stuck between the cot and the wall. She yelled for the
correction officer. The correction officer came in the cell and tried to give assistance, but was
unable to help. Several officers who were in the holding area came and tried to help, but they
were also unable to remove Plaintiff’s arm from between the wall of the cell and the cot.
At 2:05 a.m., a dispatch call was made that requested Schenectady Fire Department
assistance in order to extract Plaintiff from between the cot and the cell. The Schenectady Fire
Department responded for extrication/rescue and arrived on scene at 2:15 a.m. When the Fire
Department arrived, a lieutenant and three other firemen were taken to the cell by a Schenectady
Police Department matron in order to extract Plaintiff.
The lieutenant and three other fireman discussed what tools they were going to need and
this included the “jaws of life.” The first tool they tried was a “pry bar” (which is similar to a
19

large crow bar), but with it they were unable to move the wall or bench. They loosened the nuts
of two bolts that held the cot to the wall, which was enough to move it. After the bolts had been
loosened, one of the matrons at the Schenectady Police Department had hand lotion, which was
applied to Plaintiff’s arm. At 2:34 a.m., Plaintiff was able to free her arm.
After her arm was freed, she was asked if she want to go to the hospital, and she said no.
She was released from custody on June 5, 2012.
The sole basis of Plaintiff's negligence cause of action as against Defendant City of
Schenectady stems from the City's alleged maintenance of a dangerous condition on June 5,
2012, within the holding cell where she was being held.
7.

Events of June 6, 2012

On June 6, 2012, the day following Plaintiff’s release from custody, she again contacted
Schenectady Police Department to advise them that Ms. Fountain was verbally harassing her.
Plaintiff did not request police assistance when she called the Schenectady Police Department on
June 6, 2012; she simply wished to advise them that Ms. Fountain was calling her home.
8.

Events of June 13, 2012

Eventually, Plaintiff presented to Ellis Hospital on June 13, 2012, with regard to her arm
injury. Plaintiff's medical records from Ellis Hospital reflect that, at that time, she complained of
left arm pain which she had been experiencing for approximately one week. Plaintiff's medical
records further reflect that her left-arm complaint was due to her arm being pinned between a
wall and a board, resulting in left elbow pain and swelling. Plaintiff’s medical records are devoid
of any reference by her that she sustained an injury as a result of her arrest of June 4, 2012, or as

20

a result of conduct on the part of Defendant Officers.54
At Ellis Hospital, she underwent a “three view x-ray” of her left arm and was
subsequently told that “[the x-ray] was all right.”55 The x-ray revealed no fracture, no
dislocation and no significant bone or soft tissue abnormality. The clinical impression observed
by the physician’s assistant indicated a “[c]ontusion” on Plaintiff’s left elbow. She was told to
take Motrin/Tylenol as needed for the treatment of pain.
Plaintiff presented to the hospital on only this one occasion with regard to her arm.
At approximately this time, Plaintiff was treated by her primary care physician, Dr.
Hughes, on one occasion with regard to her arm; he did not provide a prescription, refer her to
physical therapy, or make any recommendations as to further treatment. Other than receiving
treatment at Ellis Hospital on one occasion and treatment from Dr. Hughes on one occasion,
Plaintiff received no further medical treatment with regard to the claims set forth in her Amended
Complaint. Plaintiff did not receive any mental or emotional health treatment related to the
subject incidents. As a result of the incidents alleged in the Amended Complaint, Plaintiff did
not incur any out-of-pocket expenses, and she was not caused to miss any work.

54

(Compare Dkt. No. 24, Attach. 8-9 [containing Plaintiff’s medical records] with
Dkt. No. 33, Attach. 3, at ¶ 78 [Plf.’s Rule 7.1 Response, failing to support denial with a record
citation].)
55

(Dkt. No. 33, Attach. 25, at 135-37 [attaching pages “136” through “138” of Plf.'s

Depo. Tr.].)
21

9.

Plaintiff’s Criminal Proceeding

On August 13, 2012, Plaintiff’s defense counsel filed a motion to dismiss the Resisting
Arrest charge against her on the ground that the charge “is not sufficient on its face.”56 On
September 25, 2012, City Court Judge Mark W. Blanchfield granted that motion.57 The express
ground for the granting of the motion was “[f]acial [i]nsufficiency.”58 Judge Blanchfield’s stated
that his reason for finding the charge to be facially insufficient was that the arrest for Harassment
in the Second Degree “was not in compliance with the criminal procedure law” in that the
harassment had not occurred “in [the] officers’ presence.”59
On January 30, 2013, Plaintiff proceeded to trial in Schenectady City Court regarding the
charge of Harassment in the Second Degree. On February 4, 2013, after a bench trial, Judge
Blanchfield acquitted Plaintiff, because the prosecution had not proved beyond a reasonable
doubt that she possessed the “appropriate [level] of intent” when she had physical contact with

56

(Dkt. No. 24, Attach. 19, at 1, 4 [containing affidavit-brief dated Aug. 13, 2012,
requesting dismissal of Resisting Arrest charge, because it “is not sufficient on its face”]; Dkt.
No. 33, Attach. 2, at ¶ 234 [Plf.’s Rule 7.1 Statement, asserting fact].)
57

(Dkt. No. 24, Attach. 17, at 2 [containing Decision and Order dated Sept. 25,
2012, granting motion to dismiss]; Dkt. No. 33, Attach. 29, at 1 [Motion to Reargue]; Dkt. No.
24, Attach. 17, at 1 [containing Certificate of Disposition dated Feb. 4, 2013, memorializing
prior dismissal]; Dkt. No. 33, Attach. 22, at 100 [attaching page “90” of trial transcript, noting
that “the resisting arrest charge had [previously] been dismissed . . .”]; Dkt. No. 33, Attach. 2, at
¶ 234 [Plf.’s Rule 7.1 Statement, asserting fact].)
58

(Dkt. No. 24, Attach. 17, at 2 [containing Decision and Order dated Sept. 25,
2012, granting motion to dismiss because of “Facial Insufficiency”].)
59

(Dkt. No. 24, Attach. 17, at 2 [containing Decision and Order dated Sept. 25,
2012, stating, “Not in officers’ presence, so not authorized arrest of H2d. Charges of R.A.
dismissed.”]; Dkt. No. 33, Attach. 22, at 100 [attaching page “90” of trial transcript, noting that
“the Court . . . has already found that arrest for this violation was not in compliance with the
criminal procedure law and for that reason the resisting arrest charge had been dismissed . . .”].)
22

Ms. Fountain.60 However, before rendering that ruling, Judge Blanchfield found, in pertinent
part, as follows:
[E]ven though the event did not occur in the officer’s presence, it’s–a
warrant would have been issued for the arrest if the proper procedure had
been files [sic]. So, the Court does find that probable cause exists for the
arrest.61
10.

Schenectady Police Department’s General Order 0-36

On May 24, 2012, the Schenectady Police Department issued General Order 0-36,
entitled “Domestic Incidents.”
Section II.E. of that General Order states as follows, in pertinent part: “It is the policy of
this Department that members will: . . . [i]nvestigate all domestic incidents for evidence of
criminal behavior in order to arrest offenders on appropriate criminal charges. . . .”62
Section IV.B.3.g. of that General Order states as follows:
The responding on-scene officers shall: . . . [a]fter all interviews have been
conducted, determine whether an offense has been committed, whether an
arrest should be made, and whether other action should be taken. If an
arrest is made at the scene, advise the victim that release of the suspect can
occur at any time so that the victim can take desired safety precautions.63
Section IV.C.1. of that General Order states as follows: “All warrantless arrests shall be
made in conformance with Section 140.10 of the Criminal Procedure Law and applicable

60

(Dkt. No. 33, Attach. 22, at 101 [attaching page “91” of trial transcript].)

61

(Dkt. No. 33, Attach. 22, at 100 [attaching page “90” of trial transcript].)

62

(Dkt. No. 24, Attach. 23, at 1.)

63

(Dkt. No. 24, Attach. 23, at 7-8.)
23

Department Policies and Procedure.”64
Section IV.C.8. of that General Order states as follows:
Civilian Arrest: If the complainant states a desire to arrest an offender for a
violation not occurring in the officer's presence, and a willingness to come
to the police station to sign an accusatory instrument, and inform the
offender of his/her intention to effect a citizen's arrest either verbally or by
signing a domestic incident report so stating which is duly served upon the
offender, unless such notice is impractical because the offender is offering
physical resistance, the officer shall facilitate that arrest by taking the
offender into custody and arranging for the complainant to go to the police
station to complete the necessary paperwork.65
Section IV.I.1. of that General Order states as follows:
Arrest: there will be no Appearance Tickets issued to persons arrested as a
result of any domestic incident, including violations of orders of
protection. All such persons shall be taken into custody, transported to
police headquarters, booked at the desk, fingerprinted and photographed.66
C.

Briefing on Parties’ Motions for Summary Judgment
1.

Defendants’ Motion for Summary Judgment

Generally, in support of their motion for summary judgment, Defendants assert the
following eight arguments. (See generally Dkt. No. 24, Attach. 25 [Defs.’ Memo. of Law].)
First, argue Defendants, Plaintiff’s first claim (for invasion of privacy and illegal search
under the Fourth Amendment) must be dismissed for the following reasons: (a) her Amended
Complaint alleges no facts plausibly suggesting that any search whatsoever occurred; (b) with
regard to her claim of an invasion of privacy, she gave Defendant Officers express and/or implied

64

(Dkt. No. 24, Attach. 23, at 10.)

65

(Dkt. No. 24, Attach. 23, at 14.)

66

(Dkt. No. 24, Attach. 23, at 20.)
24

consent to enter her apartment on June 4, 2012, when she called and requested police presence
that day; and (c) in any event, Ms. Fountain, who had both access to the apartment and a
substantial interest in that apartment (or, at the very least, apparent common authority over the
apartment), gave Defendant Officers valid, third-party consent to enter the apartment when she
let them into it. (Id. at 5-10 [attaching pages “2” through “7” of Defs.’ Memo. of Law].)
Second, argue Defendants, Plaintiff’s second claim (for illegal detention under the Fourth
Amendment) must be dismissed for the following reasons: (a) Defendant officers had probable
cause to arrest her for Harassment in the Second Degree under N.Y. Penal Law § 240.26 (which
proscribes, inter alia, the subjection of another person to physical contact with the intent to
harass, annoy or alarm that person) based only on the information given by Ms. Fountain and
Plaintiff herself; (b) indeed, Judge Blanchfield ruled that probable cause existed for Plaintiff’s
arrest for Harassment in the Second Degree; and (c) even if Plaintiff’s arrest was impermissible
under N.Y. Crim. Proc. Law § 140.10(1) (which permits a police officer to arrest a person for an
offense only where he or she has reasonable cause to believe that such person has committed
such offense in his or her presence), the arrest does not violate the Fourth Amendment, as
previously recognized by cases issued by this District. (Id. at 10-15 [attaching pages “7” through
“10” of Defs.’ Memo. of Law].)
Third, argue Defendants, Plaintiff’s third, fifth and ninth claims (for false arrest, assault
and battery, and negligence), which are all based on state law, must be dismissed because she
failed to serve a timely notice of claim upon Defendants within ninety days after the claims arose,
as required by N.Y. Gen. Mun. Law § 50-e (which provides that, “[i]n any case founded upon
tort where a notice of claim is required by law as a condition precedent to the commencement of
25

an action . . . against . . . any officer, appointee or employee [of a public corporation], the notice
of claim shall . . . be served . . . within ninety days after the claim arises . . .”). (Id. at 15-16
[attaching pages “12” and “13” of Defs.’ Memo. of Law].)
Fourth, argue Defendants, Plaintiff’s fourth claim (for excessive force under the Fourth
Amendment) must be dismissed for the following reasons: (a) such claims are governed by a
standard of “objective unreasonableness,” pursuant to which an officer's underlying intent or
motivation in applying the use of force has no bearing, and pursuant to which a “de minimis” use
of force (of which a de minimis injury can serve as conclusive evidence) will rarely suffice to
establish a claim; and (b) here, even assuming Plaintiff’s account of Defendant Officers’ use of
force was accurate (i.e., their throwing her down on her bed, crisscrossing and holding her legs,
twisting her left arm, using a knee to hold her hand and arm in place, bringing her to an upright
position, and dragging her downstairs in that upright position), such force was undisputably de
minimis in nature (as evidenced by the fact that she did not sustain any discernible injury that can
be categorized as greater than "minor" as a result of such force). (Id. at 16-19 [attaching pages
“13” through “16” of Defs.’ Memo. of Law].)
Fifth, argue Defendants, Plaintiff’s sixth and seventh claims (for malicious prosecution
under the Fourth Amendment and state law) must be dismissed for the following reasons: (a)
among the elements that a plaintiff must prove to succeed on such a claim are that the defendant
lacked probable cause to believe the proceeding could succeed, that the defendant acted with
malice, and that the prosecution was terminated in the plaintiffs favor; (b) here, regarding the
charge of Resisting Arrest, Defendant Officers had probable cause to believe that the proceeding
on the Harassment charge could succeed (and thus it is unnecessary to determine whether
26

probable cause existed to believe that the proceeding on the Resisting Arrest charge could
succeed), and in any event the prosecution did not terminate in Plaintiff’s favor (because a
dismissal of a criminal case on a finding that an accusatory instrument is facially insufficient is
deemed a dismissal without prejudice to proceed on an amended accusatory instrument and is not
a reflection of innocence); and (c) regarding Harassment in the Second Degree, Defendant
Officers had probable cause to believe that the proceeding on the Harassment charge could
succeed, and Plaintiff has adduced no admissible record evidence demonstrating or tending to
demonstrate that Defendant Officers acted with improper motive (i.e., malice) in the prosecution
of the Harassment charge. (Id. at 19-22 [attaching pages “16” through “19” of Defs.’ Memo. of
Law].)
Sixth, argue Defendants, Plaintiff’s eighth claim (for municipal liability arising from a
policy mandating that police officers make an arrest when responding to a call alleging domestic
violence) fails to demonstrate that Defendant City maintained an unconstitutional custom or
policy that proximately caused the alleged constitutional violations for the following reasons: (a)
General Order 0-36 did not require police to make arrests when responding to all domestic
incidents even if the offense occurred outside of their presence, as evident from Sections
IV.B.3.g. and IV.C.8. of that General Order; (b) even if General Order 0-36 did so require, it is
not unconstitutional because a Fourth Amendment violation may not be based on any failure to
comply with N.Y. Crim. Proc. Law § 140.10 (given that the Fourth Amendment does not require
the officer to witness the offense); and (c) furthermore, even if the General Order 0-36 were
unconstitutional, Plaintiff has adduced proof of only a single incident of constitutional activity
(and proof of a single incident of unconstitutional activity is not sufficient to impose municipal
27

liability). (Id. at 22-24 [attaching pages “19” through “21” of Defs.’ Memo. of Law].)
Seventh, argue Defendants, Plaintiff’s request for punitive damages from Defendant City
and Defendant Officers in their official capacities must be dismissed because such damages are
not recoverable against a municipality with regard to claims arising under either 42 U.S.C. §
1983 or state law. (Id. at 25 [attaching page “22” of Defs.’ Memo. of Law].)
Eighth, argue Defendants, Plaintiff’s first, second, third and fourth claims (for invasion of
privacy and illegal search under the Fourth Amendment, illegal detention under the Fourth
Amendment, false arrest under state law, and excessive force under the Fourth Amendment) must
be dismissed because, based on the current record, Defendant Officers are protected from liability
on those claims as a matter of law for the following reasons: (1) regarding Plaintiff’s first claim
(for invasion of privacy and illegal search under the Fourth Amendment), it was objectively
reasonable for Defendant Officers to believe that their acts did not violate Plaintiff's
constitutional rights because their presence was requested by Plaintiff at her apartment, and in
any event they reasonably relied on Ms. Fountain’s third-party consent to enter the apartment; (2)
regarding Plaintiff’s second and third claims (for illegal detention under the Fourth Amendment
and false arrest under state law), it was objectively reasonable for Defendant Officers to believe
that their acts did not violate Plaintiff's constitutional rights because Ms. Fountain advised them
that Plaintiff had initiated physical contact with her in an effort to pull her down from her own
dresser, which was confirmed and acknowledged by Plaintiff herself; and (3) regarding Plaintiff’s
fourth claim (for excessive force under the Fourth Amendment), it was objectively reasonable for
Defendant Officers to believe that their acts did not violate Plaintiff's constitutional rights
because she resisted arrest (in that, after being advised she was under arrest, she retreated to her
28

bedroom, tried to shut the door on Defendant Officers, and pulled her wrist free from Defendant
Giardono’s grasp). (Id. at 25-28 [attaching pages “22” through “25” of Defs.’ Memo. of Law].)
2.

Plaintiff’s Response and Cross-Motion for Summary Judgment

Generally, in response to Defendants’ motion for summary judgment, and in support of
her own cross-motion for summary judgment, Plaintiff asserts the following eight arguments.
(See generally Dkt. No. 39 [Plf.’s Memo. of Law].)
In response to Defendants' first argument (regarding Plaintiff's claim for invasion of
privacy and illegal search under the Fourth Amendment), Plaintiff argues that she has established
that Defendant Officers violated her Fourth Amendment right to privacy and to be secure against
unauthorized entry into her apartment for the following reasons: (a) although Defendant Officers
had Plaintiff’s implied consent to initially enter her apartment as a result of her phone call to the
Schenectady Police, after Defendant Officers left the apartment to talk in private with Ms.
Fountain in the hallway, they did not have the consent or permission of Plaintiff to re-enter the
apartment; and (b) before re-entering the apartment, Defendant Officers knew that Plaintiff had
revoked Ms. Fountain’s status as an invited guest and knew Ms. Fountain had been kicked out,
and therefore Defendant Officers could not rely on the consent of Ms. Fountain to re-enter the
apartment for the purpose of Plaintiff. (Id. at 11-16 [attaching pages “7” through “12” of Plf.’s
Opp’n Memo. of Law].)
In response to Defendants’ second argument (regarding Plaintiff’s claim for illegal
detention under the Fourth Amendment), Plaintiff argues that Defendant Officers did not have
probable cause to arrest her for Harassment in the Second Degree for the following reasons: (a)
the offense in question requires specific intent harass, annoy, or alarm another person; (b) here,
29

there was no evidence of such specific intent but merely a verbal argument between a mother and
adult daughter over ownership of some underwear (albeit with “some de minimis touching” when
Plaintiff attempted to “escort” Ms. Fountain off of the dresser in order to “get the underwear
back” as “a disciplinary measure”);67 (c) the ruling to the contrary by Judge Blanchfield was
dictum and in any even was incorrect; and (d) Defendants’ argument that the Fourth Amendment
overrides compliance with N.Y. Crim. Proc. Law § 140.10(1) is undermined by the cases of
Atwater v. City of Lago Vista, 532 U.S. 318 (2001), Payton v. New York, 445 U.S. 573 (1980),
Riddick v. New York, 445 U.S. 573 (1980), and Ramos v. City of New York, 298 F. App’x 84 (2d
Cir. 2008). (Id. at 16-20 [attaching pages “12” through “16” of Plf.’s Opp’n Memo. of Law].)
In response to Defendants’ third argument (regarding Plaintiff’s state-law claims for false
arrest, assault and battery, and negligence), Plaintiff concedes that the three referenced state-law
claims should be dismissed because the notice of claim was filed more than one year after these
claims had accrued. (Id. at 26 [attaching page “22” of Plf.’s Opp’n Memo. of Law].)
In response to Defendants’ fourth argument (regarding Plaintiff’s claim for excessive
force under the Fourth Amendment), Plaintiff argues that, even assuming that Defendant Officers
were making an arrest in their capacity as police officers (which Plaintiff disputes), a genuine
issue of material fact exists regarding whether the amount of force used was unnecessary and
excessive under the Fourth Amendment for the following reasons: (a) in determining the
reasonableness of force used during an arrest, the Court is required to consider the nature and
severity of the crime leading to the arrest, whether the suspect poses an immediate threat to the
67

Plaintiff argues that Defendant Officers “should have simply explained that the
underwear were a gift and that Mrs. Regels could not be an Indian giver, and then they should
have left.” (Dkt. No. 39, at 18 [attaching page “14” of Plf.’s Opp’n Memo. of Law].)
30

safety of the officer or others, and whether the suspect was actively resisting arrest or attempting
to evade arrest by flight; (b) here, the crime of Harassment in the Second Degree was of low
severity, Plaintiff posed no immediate threat Ms. Fountain or to Defendants, and Plaintiff was
not “actively” resisting arrest or attempting to flee; (c) rather than arrest Plaintiff, Defendant
Officers could have, and should have, issued her a summons to appear in court for the violation,
or advised Ms. Fountain how to file a complaint for harassment and apply for an arrest warrant in
City Court; and (d) instead, they used force against her (including throwing, twisting, grabbing,
kneeing, and dragging) that was more than de minimis. (Id. at 20-25 [attaching pages “16”
through “21” of Plf.’s Opp’n Memo. of Law].)
In response to Defendants’ fifth argument (regarding Plaintiff’s claims for malicious
prosecution under the Fourth Amendment and state law), Plaintiff argues that she has established
all of the elements of a claim of malicious prosecution with regard to both the Harassment charge
and Resisting Arrest charge for the following reasons: (a) regarding the Harassment charge,
Defendant Officers lacked probable cause to believe the proceeding on the charge could succeed
due to the lack of evidence that Plaintiff intended to harass, annoy, or alarm Ms. Fountain (and,
in any event, the existence of probable cause is not a defense where, as here, the arrest was on
behalf of a citizen who is strictly liable for false arrest and malicious prosecution, and in whose
shoes the arresting officers stand), and they acted with malice in the prosecution of the charge
(given Defendant Farrand’s prior acquaintance with Ms. Fountain, their deliberate attempt to
circumvent state law in order to arrest Plaintiff, and their misstatement to Ms. Fountain that she
could not drop the charges against Plaintiff); and (b) regarding the Resisting Arrest charge,
Defendant Officers lacked probable cause to believe that the proceeding on any charge could
31

succeed (and, in any event, again, probable cause is irrelevant where there was a citizen’s arrest),
they acted with actual malice in arresting Plaintiff (given Defendant Farrand’s prior acquaintance
with Ms. Fountain and their deliberate attempt to circumvent state law in order to arrest
Plaintiff), and the prosecution did terminate in Plaintiff’s favor (in that the City Court dismissed
the charge not for facial insufficiency but on the merits due to the absence of an arrest warrant,
which could not have been cured through an amended complaint or information). (Id. at 21-27
[attaching pages “25” through “31” of Plf.’s Opp’n Memo. of Law].)
In response to Defendants’ sixth argument (regarding Plaintiff’s claim for municipal
liability), Plaintiff argues that she has established the referenced claim for the following reasons:
(a) General Order 0-36 did require police officers to make arrests when responding to all
domestic incidents even if the offense occurred outside of their presence, as evident from Section
IV.I.1. of that General Order; and (b) General Order 0-36 was the proximate cause of Plaintiff’s
unconstitutional arrest because Defendant Officers did not have probable cause to arrest her (thus
rendering the City liable for the arrest even though it was a single incident). (Id. at 31-32
[attaching pages “27” and “28” of Plf.’s Opp’n Memo. of Law].)
In response to Defendants’ seventh argument (regarding the defense of qualified
immunity to Plaintiff’s claim for invasion of privacy and illegal search under the Fourth
Amendment, her claim for illegal detention under the Fourth Amendment, her claim for false
arrest under state law, and her claim for excessive force under the Fourth Amendment), Plaintiff
argues that the referenced defense is not available for the following reasons: (a) regarding
Plaintiff’s claim of invasion of privacy and illegal entry, it was objectively unreasonable for
Defendant Officers to rely on Ms. Fountain’s consent to re-enter Plaintiff’s apartment in order to
32

arrest her (given their knowledge that Plaintiff was forcing Ms. Fountain to leave); (b) regarding
Plaintiff’s claims of false arrest under the Fourth Amendment and state law, it was objectively
unreasonable for Defendant Officers to believe that Plaintiff had manifested the requisite intent
to harass, annoy, or alarm Ms. Fountain (given their knowledge that Plaintiff had merely
“initiated incidental physical contact” with Ms. Fountain for the sole purpose of recovering
underwear), and it was also objectively unreasonable for them to believe that they could perform
an arrest for a violation not committed in their presence; and (c) regarding Plaintiff’s claim of
excessive force, it was objectively unreasonable for Defendant Officers to believe that a “street
takedown” was required to arrest Plaintiff, an older woman who posed no threat of escape or
danger, for a minor offense. (Id. at 32-34 [attaching pages “28” through “30” of Plf.’s Opp’n
Memo. of Law].)
Finally, in support of her cross-motion for summary judgement, Plaintiff argues that
Defendant Officers are liable as a matter of law on her claims of false arrest and excessive force
for the following reasons: (a) because under New York Law Defendant Officers could neither
arrest Plaintiff for a violation that occurred outside of their presence nor effect a valid citizen’s
arrest of her themselves as officers, the arrest that occurred for Harassment in the Second Degree
was a citizen’s arrest by Ms. Fountain; (b) where there has been a citizen’s arrest, and the arrestee
has been subsequently acquitted (as was Plaintiff here), the existence of probable cause is not a
defense to a claim of false arrest; (c) because Defendant Officers urged Ms. Fountain to make the
citizen’s arrest, and took custody of Plaintiff following that citizen’s arrest, they stand in Ms.
Fountain’s shoes with regard to Plaintiff’s claim of false arrest for Harassment in the Second
Degree, and are strictly liable for that false arrest; and (d) moreover, where there has been a
33

citizen’s arrest, and the arrestee has been subsequently acquitted (again, as was Plaintiff here),
any force used by police officers to take the arrestee into custody is per se excessive. (Id. at 5-11
[attaching pages “1” through “7” of Plf.’s Opp’n Memo. of Law].)
3.

Defendants’ Reply and Response

Generally, in their reply with regard to their motion for summary judgment, and in their
response to Plaintiff’s cross-motion for summary judgment, Defendants assert the following
seven arguments. (See generally Dkt. No. 40. [Defs.’ Reply Memo. of Law].)
First, argue Defendants, the Court should dismiss Plaintiff’s first claim (for invasion of
privacy and illegal search under the Fourth Amendment) for the following reasons: (a) Plaintiff
concedes that she expressly and/or impliedly consented to Defendant Officers’ entry into her
apartment, and argues merely that they stepped out of her apartment to talk with Ms. Fountain
about Plaintiff’s impending arrest, and then re-entered her apartment without Plaintiff's consent
to effectuate the arrest; (b) even if Defendant Officers did step out of Plaintiff’s apartment (which
they dispute), Plaintiff unquestionably did not revoke or otherwise withdraw her consent for them
to enter until after she was advised that she was under arrest; and (c) at the very least, Defendant
Officers’ re-entry into Plaintiff’s apartment was objectively reasonable, affording them qualified
immunity. (Id. at 4-6 [asserting pages “2” through “4” of Defs.’ Reply Memo. of Law].)
Second, argue Defendants, the Court should dismiss Plaintiff’s second claim (for illegal
detention under the Fourth Amendment) for the following reasons: (a) the facts asserted in
Plaintiff’s opposition memorandum of law (e.g., that she was merely attempting to “escort” Ms.
Fountain off of the dresser) are wholly unsupported by the record evidence adduced by the
parties; (b) police officers are permitted to rely on the complaining statements of a putative
34

victim, who is presumed to be reliable, especially when meeting officers face to face (as
happened here); and (c) contrary to arguing that the Fourth Amendment “overrides” compliance
with N.Y. Crim. Proc. Law § 140.10(1), Defendants simply set forth the well-settled point of law
that a violation of that state statute (which provides additional restrictions over and above those
imposed by the Fourth Amendment on the scope of police authority to arrest), does not rise to the
level of a Fourth Amendment violation (rendering the cases cited by Plaintiff either inapposite or
supportive of Defendants’ argument). (Id. at 7-10 [asserting pages “5” through “8” of Defs.’
Reply Memo. of Law].)
Third, argue Defendants, the Court should dismiss Plaintiff’s third, fifth and ninth claims
(for false arrest under state law, assault and battery under state law, and negligence under state
law) because, by conceding the merit of their third argument for the dismissal of those claims,
Plaintiff has effectively abandoned them. (Id. at 10-11 [asserting pages “8” and “9” of Defs.’
Reply Memo. of Law].)
Fourth, argue Defendants, the Court should dismiss Plaintiff’s fourth claim (for excessive
force under the Fourth Amendment) for the following reasons: (a) factors relevant to an analysis
of whether force was excessive under the Fourth Amendment include the need for the use of
force, the relationship between the need for force and the amount of force used, and the extent of
any injury; (b) here, a need for at least some force existed because, as Plaintiff acknowledges,
after she was advised that she was under arrest, she told the officers to leave, retreated to her
bedroom, and closed the door (thus attempting to evade arrest); (c) moreover, the amount of
force used was minimal (consisting, at most, of pushing Plaintiff down onto a bed, crisscrossing
her legs, twisting arms behind her back to affix handcuffs, holding down one of her arms with a
35

knee, and lifting her to an upright position); and (d) finally, Plaintiff’s medical records are devoid
of any reference to a causally related injury. (Id. at 11-13 [asserting pages “9” through “11” of
Defs.’ Reply Memo. of Law].)
Fifth, argue Defendants, the Court should dismiss Plaintiff’s sixth and seventh claims (for
malicious prosecution under the Fourth Amendment and state law) for the following reasons:
(a) as an initial matter, Plaintiff’s vicarious liability argument (i.e., that the existence of probable
cause is irrelevant because Defendant Officers are vicariously and strictly liable as the agents or
instigators of Ms. Fountain) is both unsupported by the cases cited by Plaintiff and unavailable to
her at this late stage of the action (given that no vicarious liability theory was pled in her
Amended Complaint); (b) in any event, regarding the Harassment charge, Plaintiff fails to adduce
admissible evidence that Defendant Officers acted with malice in the prosecution of that charge,
because her assertions about Defendant Farrand’s prior romantic relationship with Ms.
Livingston is pure speculation and conjecture; and (c) moreover, regarding the Resisting Arrest
charge, Plaintiff’s argument that the charge was dismissed on the merits (and not due to facial
insufficiency) is wholly unsupported by the record (and, in any event, Defendants demonstrated
that probable cause existed with regard to the Harassment charge, which necessarily satisfies
probable cause relative to the Resisting Arrest charge). (Id. at 13-14 [asserting pages “11” and
“12” of Defs.’ Reply Memo. of Law].)
Sixth, argue Defendants, the Court should dismiss Plaintiff’s eighth claim (for municipal
liability) for the following reasons: (a) in misinterpreting Section IV.I.1. of General Order 0-36 as
requiring that police officers to arrest parties to domestic incidents who have not committed an
offense, Plaintiff overlooks Section II.E. of that General Order, which requires City of
36

Schenectady police officers to “[i]nvestigate all domestic incidents for evidence of criminal
behavior in order to arrest offenders on appropriate criminal charges” (emphasis added); (b)
Plaintiff also overlooks that Section IV.C.1. of the General Order explicitly requires that “[a]ll
warrantless arrests shall be made in conformance with Section 140.10 of the Criminal Procedure
Law . . .”; (c) in any event, noncompliance with N.Y. Crim. Proc. Law § 140.10(1) does not
amount to a constitutional violation for purposes of municipal liability pursuant to 42 U.S.C. §
1983. (Id. at 15 [asserting page “13” of Defs.’ Reply Memo. of Law].)
Seventh, in response to Plaintiff’s cross-motion for summary judgment, Defendants argue
that Plaintiff’s cross-motion should be denied for the following reasons: (a) as an initial matter,
Plaintiff’s entire cross-motion is premised on a vicarious theory of liability (whether arising from
an agency relationship or conspiratorial relationship), which she never pled in her Amended
Complaint and thus may not rely on in this late stage of the action; (b) in any event, Defendant
Officers were authorized to take custody of Plaintiff because probable cause existed to arrest her
for harassment (and People v. Carroll, 22 Misc.3d 755 [N.Y. City Ct., City of Rochester 2008]
does not hold otherwise); and (c) indeed, Plaintiff’s “strict liability” argument ignores both the
defense of probable cause and the fact a violation of a state law (such as N.Y. Crim. Proc. Law §
140.10) is insufficient to establish a violation of the Fourth Amendment. (Id. at 16-17 [asserting
pages “14” and “15” of Defs.’ Reply Memo. of Law].)
II.

GOVERNING LEGAL STANDARDS
A.

Standard Governing Motions for Summary Judgment

Because the parties to this action have demonstrated, in their memoranda of law, an
accurate understanding of the legal standard governing motions for summary judgment, the Court
37

will not recite that well-known legal standard in this Decision and Order, but will direct the
reader to the Court’s decision in Pitts v. Onondaga Cnty. Sheriff's Dep't, 04-CV-0828, 2009 WL
3165551, at *2-3 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J.), which accurately recites that legal
standard.
To that recitation of the law, the Court would only add one point. In this District, when a
non-movant fails to oppose a legal argument asserted by a movant, the movant's burden with
regard to that argument is lightened, such that, in order to succeed on that argument, the movant
need only show that the argument possess facial merit, which has appropriately been
characterized as a "modest" burden. See N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed
motion is unopposed and the Court determined that the moving party has met to demonstrate
entitlement to the relief requested therein . . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL
3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v.
Astrue, 09-CV-0722, 2009 WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.)
(collecting cases).68

68

Alternatively, the court can deem the challenged claim abandoned (regardless of
the facial merit of the unresponded-to argument). See Jackson v. Federal Exp., No. 12-1475,
2014 WL 4412333, at *6 (2d Cir. 2014) ("Where a partial response to a motion is made– i.e.,
referencing some claims or defenses but not others–a distinction between pro se and counseled
responses is appropriate. In the case of a pro se, the district court should examine every claim or
defense with a view to determining whether summary judgment is legally and factually
appropriate. In contrast, in the case of a counseled party, a court may, when appropriate, infer
from a party's partial opposition that relevant claims or defenses that are not defended have been
abandoned. In all cases in which summary judgment is granted, the district court must provide an
explanation sufficient to allow appellate review. This explanation should, where appropriate,
include a finding of abandonment of undefended claims or defenses.").
38

B.

Standards Governing Plaintiff’s Claims and Defendants’ Defenses

Because the parties have (in their memoranda of law) demonstrated an adequate
understanding of the legal standards governing Plaintiff’s claims and Defendants’ defenses, the
Court will not recite those standards in their entirety in this Decision and Order, which is
intended primarily for the review of the parties. Rather, the Court will merely recite portions of
those standards as necessary in analyzing Plaintiff’s claims in Part III of this Decision and Order.
III.

ANALYSIS
A.

Plaintiff’s First Claim (for Invasion of Privacy / Illegal Search)

After carefully considering the matter, the Court dismisses Plaintiff’s first claim for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and I.C.3. of this
Decision and Order. To those reasons, the Court adds only one point.
In addition to analyzing the issue presented under the framework presented by Defendants
(including the continuation of third-party consent by Ms. Fountain, and the delayed-revocation of
Plaintiff’s consent), the Court has analyzed it under an alternative framework for purposes of
thoroughness. When Plaintiff gave Defendant Officers consent to enter her apartment, she gave
them consent to enter her apartment’s “curtilage.” See Aguilar v. Immig. and Customs Enforce.
Div. of U.S. Dep’t of Homeland Sec., 07-CV-8224, 2012 WL 1538431, at *6 (S.D.N.Y. Apr. 30,
2012) (“Consent to enter one's home . . . includes the curtilage . . . .”).69 The door-blocked

69

See also Nebraska v. Sutton, 434 N.W.2d 689, 696 (Neb. 1989) (finding that,
where “defendant and his wife both . . . gave oral permission for the investigating officers to
search their residence for a gun,” the consent covered search in “the curtilage of the home and in
an area that could be described as part of the house”); Woods v. Georgia, 371 S.E.2d 865, 866
(Ga. 1988) (finding that ing that written consent to search “940 N. Jackson Street” “impliedly
includes consent to search the curtilage”).
39

“interior hallway” (through which Defendant Officers had to pass to enter the apartment) was
part of the apartment’s curtilage (if not part the third-floor apartment itself). See, e.g., United
States v. Lundin, 47 F. Supp.3d 1003, 1015 (N.D. Cal. 2014) (recognizing that apartment’s
“interior hallway” was part of apartment’s “curtilage”). When one has granted consent to police
to enter her apartment and its curtilage for the purpose of responding to a domestic dispute, it is
nonsensical to argue that police have “left” the apartment (and thus acquired a need to obtain new
consent to “re-enter” it) by briefly entering its curtilage to take a step toward responding to the
domestic dispute. Plaintiff attempts in vain to narrow the scope of the 911 call by drawing a line
between her purpose for the 911 call (the arrest of Ms. Fountain) and the result of that call (her
own arrest).
For all of these reasons, Plaintiff’s first claim is dismissed.
B.

Plaintiff’s Second Claim (for False Arrest)

After carefully considering the matter, the Court dismisses Plaintiff’s second claim for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and I.C.3. of this
Decision and Order. To those reasons, the Court adds five points.
First, setting aside the fact that Defendant Officers had probable cause to believe that
Plaintiff acted an intent to harass, annoy or alarm Ms. Fountain based on the information given
by Ms. Fountain and Plaintiff herself, Judge Blanchfield expressly determined that “the Court
does find that probable cause exists for the arrest.” See, supra, Part I.B. of this Decision and
Order. The determination was necessary for Judge Blanchfield to reconcile his decision on
Plaintiff’s motion to dismiss the Resisting Arrest charge and the need for trial on the Harassment

40

charge.70 The Court notes that Plaintiff’s motion to dismiss the Resisting Arrest charge raised the
issue of lack of probable cause as an alternative ground for dismissal of the charge.71 As a result,
Plaintiff is collaterally estopped from relitigating this probable-cause issue in this action.72
Second, in arguing that no probable cause of incriminating intent existed, Plaintiff places
heavy reliance on Defendant Farrand’s affinity for Ms. Fountain (due to their purported “mutual
friend”). Plaintiff also places heavy reliance on her purported subjective intent to merely “escort”
Ms. Fountain off of the dresser to find what was (she believed) her rightful property. However, a
probable cause determination focuses not on the arresting officer’s affinities, or the arrestee’s
subjective intent, but the objective facts known to the arresting officer at the time of arrest. See
Gonzalez v. City of Schnectady, 728 F.3d 149, 155 (2d Cir. 2013) (“This inquiry is limited to
whether the facts known by the arresting officer at the time of the arrest objectively provided
probable cause to arrest.”); cf. Ricciutti v. NYC Transit Auth., 124 F.3d 123 (2d Cir. 1997)
(“Once an officer has a reasonable basis for believing there is probable cause, he is not required
to explore and eliminate every theoretically plausible claim of innocense before making an

70

(Dkt. No. 33, Attach. 22, at 100 [attaching page “90” of trial transcript, stating,
“[T]he Court would note that . . . the resisting arrest charge had been dismissed . . . . That does
not mean that there was no underlying basis for the–for the arrest, necessarily. And the Court
does find, at this time, that even though the event did not occur in the officer's presence, . . .
probable cause exists for the arrest. Now, moving on to the issue here, for this trial . . . .”)
71

(Dkt. No. 24, Attach. 19, at 2 [containing affidavit-brief dated Aug. 13, 2012,
arguing, “In addition, the conduct complained of by [Ms. Fountain] does not amount to even the
level of a Violation of Harassment in the second degree”].)
72

See, e.g., DeFranco v. Town of Irondequoit, 06-CV-6442, 2009 WL 2957813, at
*4 (W.D.N.Y. Sept. 11, 2009); Nadal v. City of New York, 964 N.Y.S.2d 100, 101 (N.Y. App.
Div., 1st Dept. 2013); Martin v. Rosenzweig, 894 N.Y.S.2d 228, 230 (N.Y. App. Div., 3d Dept.
2010).
41

arrest.”). Here, the objective facts included an admission by Plaintiff that she had (during a
dispute) grabbed Ms. Fountain’s arm in order to gain access to a dresser on which Ms. Fountain
was sitting, a complaint by Ms. Fountain regarding that contact, and a red mark on Ms.
Fountain’s arm.
Third, as to Plaintiff’s argument that Defendant Officers should have merely issued her a
summons to appear in court for the violation, the Fourth Amendment did not require this of
them. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable
cause to believe that an individual has committed even a very minor criminal offense in his
presence, he may, without violating the Fourth Amendment, arrest the offender.”). As judges of
this District have specifically recognized,
There is no requirement under the Fourth Amendment that a police officer
personally witness the conduct upon which he or she relies to establish the
existence of probable cause . . . . In considering a plaintiff’s claims under
Section 1983, the question is whether there has been a violation of a
federal right, which here is claimed to be the Fourth Amendment . . . .
Because [the officers] did have a sufficient factual basis to conclude that
probable cause existed for the arrest of [Plaintiff], the mere fact that he did
not personally witness the alleged conduct and may have acted in violation
of state law is not sufficient to establish a violation of the Fourth
Amendment.
Williams v. Schultz, 06-CV-1104, 2008 WL 4635383, at *7 (N.D.N.Y. Oct. 16, 2008) (Lowe,
M.J., adopted by Hurd, J.) (emphasis added) (internal quotation marks omitted).
Fourth, Plaintiff’s vicarious liability theory is unavailing. As an initial matter, Plaintiff
did not sue Defendant Officers for wrongfully encouraging Ms. Fountain to effect, or wrongfully
assisting her in effecting, a citizen’s arrest of Plaintiff under the Fourth Amendment; rather, she
sued Defendant Officers for falsely arresting her under the Fourth Amendment. See, supra, Part

42

I.A. of this Decision and Order. In any event, the Court does not read the case heavily relied on
by Plaintiff (New York v. Carroll, 22 Misc.3d 755 [N.Y. City Ct., City of Rochester 2008]) as
holding that under the Fourth Amendment a police officer may not rely on probable cause to
arrest a person as a defense to a claim of false arrest when he has taken that person into custody
following a citizen’s arrest of the person for a noncriminal harassment violation that occurred
outside the officer's presence (and the person has subsequently been acquitted); rather, that case
held merely that under New York law a person cannot lawfully be prosecuted for resisting arrest
during a police officer's attempt to take him into custody following a citizen's arrest for a
noncriminal harassment violation that occurred outside the officer's presence. Without parsing in
detail the differences between Carroll and the current case, generally the former differs from the
latter in the following four ways: (1) the former focuses on a violation of state statutory law
while the latter focuses on a violation of the Fourth Amendment; (2) the former focuses on the
rights of an arrestee while the latter focuses on the rights of a police officer; (3) the former
regards a criminal action while the latter regards a civil rights action; and (4) the former regards a
false arrest for resisting arrest while the latter regards a false arrest for harassment in the second
degree.
Fifth, at the very least, based on the current record, Defendant Officers are protected from
liability on this claim as a matter of law by the doctrine of qualified immunity.
For all of these reasons, Plaintiff’s second claim is dismissed.

43

C.

Plaintiff’s Third, Fifth and Ninth Claims (for False Arrest, Assault and
Battery, and Negligence)

After carefully considering the matter, the Court dismisses Plaintiff’s third, fifth and ninth
claims for the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and
I.C.3. of this Decision and Order. To those reasons, the Court adds only that, in the alternative,
the Court dismisses these claims because, by failing to oppose this argument, Plaintiff has
lightened Defendants’ burden to one of facial merit, which they easily met.
For all of these reasons, Plaintiff’s third, fifth and ninth claims are dismissed.
D.

Plaintiff’s Fourth Claim (for Excessive Force)

After carefully considering the matter, the Court dismisses Plaintiff’s fourth claim for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and I.C.3. of this
Decision and Order. To those reasons, the Court adds only two points.
First, while Plaintiff may not have been “actively” resisting arrest or attempting to flee at
the very moment she was handcuffed, she had immediately prior to that moment attempted to
evade arrest by retreating to her room, shutting the door on Defendant Officers, and pulling her
wrist free from Defendant Giardono’s grasp. As a result, the need for at least some force existed.
Furthermore, some force was all that was used: Plaintiff was handcuffed on a bed, the incident
did not last very long, and her medical records showed no causally related injury.
The Court notes that “[n]ot every push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S.
386, 396 (1986) (internal quotation marks omitted). As a result, “a de minimis use of force will
rarely suffice to state a constitutional claim.” Topolski v. Cottrell, 11-CV-1216, 2012 WL

44

3264927, at *3 (N.D.N.Y. Aug. 9, 2012) (D’Agostino, J.). Moreover, “de minimis injury can
serve as conclusive evidence that de minimis force was used.” Washpon v. Parr, 561 F. Supp.2d
394, 407 (S.D.N.Y. 2008) (internal quotation marks omitted). “Injuries held to be de minimis for
purposes of defeating excessive force claims include short-term pain, swelling, and bruising,
brief numbness from tight handcuffing, claims of minor discomfort from tight handcuffing, and
two superficial scratches with a cut inside the mouth.” Milo v. City of New York, 14-CV-1172,
2014 WL 5933091, at *6 (E.D.N.Y. Nov. 11, 2014) (internal quotation marks omitted).
Second, at the very least, based on the current record, Defendant Officers are protected
from liability on this claim as a matter of law by the doctrine of qualified immunity.
For all of these reasons, Plaintiff’s fourth claim is dismissed.
E.

Plaintiff’s Sixth and Seventh Claims (for Malicious Prosecution)

After carefully considering the matter, the Court dismisses Plaintiff’s sixth and seventh
claims for the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and
I.C.3. of this Decision and Order. To those reasons, the Court adds only two points.
First, Plaintiff’s argument that the Resisting Arrest change terminated in her favor
(because its dismissal was not based on facial insufficiency) is based on evidence not contained
in the record (e.g., the fact that the defect could not have been cured through an amended
complaint or information) and indeed ignores the express language of Judge Blanchfield’s
dismissal. In any event, probable cause existed to prosecute Plaintiff for Resisting Arrest based
on her attempt to evade arrest (which, again, involved her retreating to her room, shutting the
door on Defendant Officers, and pulling her wrist free from Defendant Giardono's grasp).
Second, the Court finds that probable cause existed to prosecute Plaintiff for Harassment
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in the Second Degree, for the reasons set forth above in Part III.B. of this Decision and Order.
Alternatively, the Court finds that Plaintiff has adduced no admissible record evidence
demonstrating or tending to demonstrate that Defendant Officers acted with improper motive
(i.e., malice) in the prosecution of the Harassment charge. Plaintiff’s assertion that Defendant
Farrand had an affinity for Ms. Fountain due to a prior romantic relationship with Ms. Livingston
is based on speculation and conjecture. Moreover, Plaintiff argument that Defendant Farrand
intentionally misadvised Ms. Fountain regarding any right she had to drop her Harassment charge
against Plaintiff at the police station is not supported by the record.
For all of these reasons, Plaintiff’s sixth and seventh claims are dismissed.
F.

Plaintiff’s Eighth Claim (for Municipal Liability)

After carefully considering the matter, the Court dismisses Plaintiff’s eighth claim for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.C.1. and I.C.3. of this
Decision and Order. To those reasons, the Court adds only two points.
First, as an initial matter, the Court finds that no constitutional violation occurred that
could have been caused by any municipal policy or custom (much less by General Order 0-36).
Second, even if such a violation occurred, it was not caused by General Order 0-36. For
the sake of brevity, the Court will not linger on Plaintiff’s myopic reading of General Order 0-36,
and the dearth of admissible record evidence that Defendant Officers were relying on it, and not
the facts before them, when they arrested and charged Plaintiff. Just as important is the fact that,
if Plaintiff were correct that General Order 0-36 required police officers to make arrests when
responding to all domestic incidents even if the offense occurred outside of their presence, then
either she or Ms. Fountain would have been arrested on the evening of June 3, 2012, when
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Officer Savignano responded to Plaintiff’s call to the Schenectady Police Department due to an
argument she was having with Ms. Fountain.
For all of these reasons, Plaintiff’s eighth claim is dismissed.
G.

Plaintiff’s Claim for Punitive Damages

After carefully considering the matter, the Court dismisses this claim for the reasons
stated in Defendants’ memorandum of law. See, supra, Part I.C.1. of this Decision and Order. To
those reasons, the Court would add only that, because Plaintiff never opposed this argument,
Defendants’ burden with regard to it was lightened to one of facial merit, which they easily met.
H.

Plaintiff’s Cross-Motion for Summary Judgment

After carefully considering the matter, the Court denies Plaintiff’s cross-motion for the
reasons stated in Defendants’ reply memorandum of law. See, supra, Parts I.C.3. of this
Decision and Order. To those reasons, the Court adds merely that it rejects Plaintiff’s vicarious
liability theory (which forms the basis of her cross-motion) for the same reasons as stated above
in Part III.B. of this Decision and Order.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 24) is
GRANTED; and it is further
ORDERED that Plaintiff’s cross-motion for summary judgment (Dkt. No. 33) is
DENIED.
The Clerk is directed to enter judgment for Defendants and close this case.
Dated: June 25, 2015
Syracuse, New York

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