Mancucci v. Kinnear et al

Filing 67

SUMMARY ORDER - That defendants' 58 motion for summary judgment is DENIED. That the following claim remains against defendants: a Fourth Amendment excessive force claim. That this case is now deemed trial ready and a trial scheduling order will be issued in due course. Signed by Senior Judge Gary L. Sharpe on 2/3/2021. (Copy served via regular mail)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ROBERT MANCUCCI,
Plaintiff,

1:17-cv-1255
(GLS/DJS)

v.
DAVID A. PATERNIANI et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff pro se Robert Mancucci commenced this action against
defendants David A. Paterniani, Frank K. Adams, and Jarrod R. Bowman,
New York State Police (NYSP) Troopers, alleging an excessive force claim.
(Compl., Dkt. No. 1.) Now pending is defendants’ motion for summary
judgment. (Dkt. No. 58.) For the reasons that follow, defendants’ motion is
denied.
I. Background
On May 16, 2020, defendants went to Mancucci’s sister’s home in
Schaghticoke, New York to question him regarding a stolen firearm. (Defs.’
Statement of Material Facts (SMF) ¶ 2, Dkt. No. 58, Attach. 5.) After an
extensive search of the property, Mancucci was found under the home’s
porch. (Id. ¶¶ 3-4.) Mancucci alleges that defendants dragged him out

from under the porch, and repeatedly struck him in the head, neck, back,
stomach, and ribs before and after he was handcuffed. (Id. ¶¶ 5-8.) He
also alleges that defendants told him that they would “get” him if he told
anybody about the assault. (Id. ¶ 10.)
Mancucci initially brought claims of excessive force and deliberate
indifference to medical needs against NYSP Trooper Kristofer Kinnear and
three unidentified troopers. (Compl.) His deliberate indifference to medical
needs claim and both of his claims against Kinnear were dismissed upon
initial review. (Dkt. Nos. 7, 8.) Notably, in maintaining the excessive force
claim, the court improperly characterized it as an Eighth Amendment claim.
(Id.) The court then ordered the superintendent of NYSP to provide the
identities of the John Doe defendants, (Dkt. No. 8), and he identified
defendants shortly thereafter, (Dkt. No. 10). Mancucci’s complaint was
then deemed amended to replace the three John Does with Paterniani,
Adams, and Bowman. (Dkt. No. 11.)
After a lengthy discovery process, defendants moved for summary
judgment, (Dkt. No. 58), which motion is currently pending.

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II. Discussion
Defendants move for summary judgment, arguing that judgment
should be entered for them on Mancucci’s excessive force claim, the sole
remaining claim, on the following four grounds: (1) failure to prosecute
pursuant to Fed. R. Civ. P. 41(b), (2) Mancucci’s claim is a Fourth
Amendment claim; not an Eighth Amendment claim, (3) the complaint lacks
sufficient allegations of personal involvement with respect to defendants,
and (4) qualified immunity applies. (Dkt. No. 58, Attach. 1 at 3-8.)
Defendants’ four grounds for summary judgment are wholly unpersuasive
and inadequate to meet their initial burden of establishing their entitlement
to judgment as a matter of law. See Nick’s Garage, Inc. v. Progressive
Cas. Ins. Co., 875 F.3d 107, 115 (2d Cir. 2017) (“[W]hen a defendant
moves for summary judgment, it is the defendant who must show
entitlement to judgment.” (emphasis omitted)). Accordingly, their motion
must be denied.
First, defendants argue that the complaint should be dismissed based
on Mancucci’s failure to prosecute. (Id. at 3-4.) “[D]ismissal for failure to
prosecute is a harsh remedy to be utilized only in extreme situations.”
United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.
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2004) (internal quotation marks and citation omitted). To determine
whether dismissal for failure to prosecute is appropriate, the court must
consider the following five factors articulated in Drake: whether
(1) “plaintiff’s failure to prosecute caused a delay of significant duration”; (2)
“plaintiff was given notice that further delay would result in dismissal”; (3)
“defendant [would] likely . . . be prejudiced by further delay”; (4) “the need
to alleviate court calendar congestion” outweighs “plaintiff’s right to an
opportunity for a day in court”; and (5) lesser sanctions would be
insufficient. Id. (citations omitted).
Defendants argue that the complaint should be dismissed for failure
to prosecute because Mancucci did not apprise the court of his change of
address when he was released from DOCCS custody in May 2020. (Dkt.
No. 58, Attach. 1 at 3-4.) However, defendants do not advance any
argument as to whether and how the relevant factors weigh in favor of
dismissing the case. (Id.) Nor can they. The docket entries that were
returned as undeliverable were defendants’ requests for extensions of time
to file their motion for summary judgment, and the motion itself, (Dkt. Nos.
54, 57, 61), to which Mancucci timely responded, (Dkt. No. 64). To be
sure, Mancucci filed a change of address shortly after defendants filed the
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pending motion. (Dkt. No. 63.) Under these circumstances, Mancucci has
not caused any delay in the litigation, and defendants have not suffered
any prejudice. Accordingly, the relevant factors weigh in Mancucci’s favor,
and this ground for summary judgment is rejected.
Next, defendants apparently argue that Mancucci’s claim should be
dismissed because it has been characterized by the court as an Eighth
Amendment claim, and not as a Fourth Amendment claim. (Dkt. No. 58,
Attach. 1 at 4-5.) Defendants are correct that Mancucci’s claim sounds in
the Fourth Amendment, as that is the Amendment that prohibits the use of
excessive force by a police officer in the course of an arrest. See Penree
v. City of Utica, No. 6:13-cv-1323, 2016 WL 915252, at *8 (N.D.N.Y. Mar.
4, 2016) (“The Fourth Amendment's prohibitions against unreasonable
seizures applies equally to how an arrest is carried out, and, therefore, all
claims that law enforcement officers have used excessive force . . . in the
course of an arrest . . . should be analyzed under the Fourth Amendment.”
(internal quotation marks and citation omitted)).
However, it is unclear why the court’s inaccurate characterization of
Mancucci’s claim should be grounds for summary judgment. As argued by
Mancucci, (Dkt. No. 64 at 1-2), he did not include any amendment in his
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complaint with respect to his excessive force claim, and it was the court
that characterized it as an Eighth Amendment claim, (Compl.; Dkt. Nos. 7,
8). Defendants do not explain why the excessive force claim should be
dismissed on the merits. (See generally Dkt. No. 58, Attach. 1.) Rather,
they rely on semantics and the characterization that the court made three
years ago. (Id.) Summary judgment on that basis is untenable, especially
given Mancucci’s pro se status, and the court’s corresponding duty to read
his complaint liberally to have alleged the strongest claim that it suggests.
See Jackson v. Bertone, No. 9:20-CV-1092, 2020 WL 6385066, at *2
(N.D.N.Y. Oct. 30, 2020) (“In reviewing a pro se complaint, the court has a
duty to show liberality toward pro se litigants.” (citation omitted)).
Accordingly, this ground for summary judgment is rejected as well.
Third, defendants argue that they are entitled to summary judgment
because Mancucci has not set forth sufficient allegations to establish their
personal involvement in the events giving rise to this litigation. (Dkt.
No. 58, Attach. 1 at 5-7.) It is well settled that personal involvement of
defendants in the alleged constitutional deprivation is a prerequisite to a
finding of liability. See Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016).
Defendants argue that, because Mancucci testified at his deposition that
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there were ten officers from NYSP and the Rensselaer County Sheriff’s
Office on scene at his sister’s home, and because he could not recall which
of those officers assaulted him, Mancucci has not set forth sufficient
allegations of personal involvement. (Dkt. No. 58, Attach. 1 at 5-7.) This
argument is unavailing.
As argued by Mancucci, (Dkt. No. 64 at 3), he stated in his complaint
that the people who assaulted him were members of NYSP, (Compl. at 23), who are easily distinguishable by uniform and vehicle from any other
police agency. Mancucci did not know the identities of the troopers who
allegedly assaulted him, (id.), and, thus, the court ordered NYSP’s
superintendent to identify them, (Dkt. No. 8). The superintendent identified
defendants, (Dkt. No. 10), and the John Does in the complaint were
replaced with defendants, effectively making all allegations in the complaint
against the John Does allegations against Paterniani, Adams, and
Bowman. Accordingly, defendants have not met their initial burden on
summary judgment of showing that there is no genuine issue of material
fact as to whether Mancucci set forth sufficient allegations of personal
involvement, and this ground for judgment is without merit.
Finally, defendants argue that summary judgment is appropriate
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because the doctrine of qualified immunity bars Mancucci’s claim. (Dkt.
No. 58, Attach. 1 at 7-8.) Qualified immunity shields government
employees from liability in two circumstances: “(1) their conduct did not
violate clearly established rights of which a reasonable person would have
known, or (2) it was objectively reasonable to believe that their acts did not
violate these clearly established rights.” See Cornejo v. Bell, 592 F.3d 121,
128 (2d Cir. 2010) (internal quotation marks, alterations, and citations
omitted).
Defendants’ argument with respect to qualified immunity is entirely
conclusory. (Dkt. No. 58, Attach. 1 at 7-8.) Indeed, they merely parrot the
doctrine’s elements, and assert, without any supporting facts, that they
reasonably believed their actions were reasonable and did not violate
Mancucci’s constitutional rights. (Id.) Notably, defendants do not explain
the basis upon which they believed their actions were reasonable. ( See
generally Dkt. No. 58, Attach. 1.) In fact, defendants do not offer an
alternative version of Mancucci’s factual assertions, which are that he was
needlessly dragged and beaten before and after he was handcuffed. ( See
generally Dkt. No. 58; Compl.) Without the benefit of an alternative set of
facts, Mancucci’s version is all that the court has before it, and, on those
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facts, qualified immunity cannot apply.
Accordingly, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt.
No. 58) is DENIED; and it is further
ORDERED that the following claim remains against defendants: a
Fourth Amendment excessive force claim; and it is further
ORDERED that this case is now deemed trial ready and a trial
scheduling order will be issued in due course; and it is further
ORDERED that the clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
February 3, 2021
Albany, New York

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