Profitt et al v. Village of Deposit et al

Filing 41

MEMORANDUM-DECISION and ORDER - That defendants' motion for summary judgment (Dkt. No. 30) is GRANTED IN PART and DENIED IN PART as follows: DENIED with respect to plaintiffs' § 1983 claim based on a violation of the Equal Protection Clause against all defendants and plaintiffs' § 1983 claim based on a violation of the Fourth Amendment involving only occasions 7, 15, 21, and 28 against defendant Jonathan O'Connor; GRANTED in all other respects. That this case is deemed trial ready and a scheduling order shall issue in due course. Signed by Senior Judge Gary L. Sharpe on 3/2/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TROY PROFFITT et al.,
3:15-cv-750
(GLS/DEP)

Plaintiffs,
v.
VILLAGE OF DEPOSIT et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Office of Ronald R. Benjamin
P.O. Box 607
126 Riverside Drive
Binghamton, NY 13902-0692
FOR THE DEFENDANTS:
Office of Frank W. Miller
6575 Kirkville Road
East Syracuse, NY 13057

RONALD R. BENJAMIN, ESQ.

FRANK W. MILLER, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs Troy Proffitt, Dawn Proffitt, and Corey Proffitt bring this
action pursuant to 42 U.S.C. § 1983, alleging that “defendants’ conduct
contravened plaintiffs’ rights a[s] guaranteed by the Constitution of [the]

United States, including but not limited to the First, Fourth, Fifth[,] and
Fourteenth Amendments.” (Compl., Dkt. No. 2 ¶ 29.) Plaintiffs demand
compensatory damages, exemplary damages, costs, and “a permanent
injunction enjoining the defendants from coming within 500 feet of [them].”
(Id. at 8.)
Pending before the court is defendants’ motion for summary
judgment, (Dkt. No. 30), which is granted in part and denied in part for the
following reasons.
II. Background
A.

Facts1
Troy and Dawn Proffitt, husband and wife, along with their son,

Corey, bring this action against the Village of Deposit, the Deposit police
chief, Donald Cantwell, and Deposit police officers, Joshua Williamson,
Aaron Smith, Roger Singleton, and Jonathan O’Connor. (Compl. ¶¶ 1-8.)
They contend that “defendants have repeatedly stopped [them] while
driving on public roads, for no reason at all other than to intimidate and
harass them.” (Id. ¶ 10.) Specifically, this action revolves around thirty-

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Unless otherwise noted, the facts are undisputed.

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three2 traffic stops that occurred between July 23, 2011 and October 22,
2015. (Defs.’ Statement of Material Facts (SMF) ¶ 16, Dkt. No. 30, Attach.
1.)
Occasion3 1 involved the New York State Police and occurred on July
23, 2011, more than three years before the filing of plaintiffs’ complaint on
May 18, 2015. (Id. ¶¶ 18, 19.) Although the specifics of this occasion are
not discussed, the parties dispute whether it falls outside the statute of
limitations. (Id. ¶ 18; Pls.’ Statement of Material Facts (SMF) ¶ 18, Dkt.
No. 34.) Likewise, the specifics of other occasions are not discussed
because they involved non-party police agencies of which defendants have
no authority over. (Defs.’ SMF ¶¶ 19-22, 29-31.) For instance, occasions
2-4, 8, 14, 17, and 26 primarily involved the State Police, (id. ¶ 19),
occasion 11 primarily involved the Delaware County Sheriff’s Department,
(id. ¶¶ 82-85, 90-91), and occasions 7, 15-16, 20-21, 27-28, and 33 all
primarily involved the Village of Hancock Police Department, (id. ¶ 28).

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Although plaintiffs do not contest that they were stopped thirty-three times, they inexplicably cite
“34” occasions in their response in opposition to defendants’ motion for summary judgment. (Dkt. No.
34, Attach. 5 at 1.) As there is no basis in the record to provide for this additional stop, the court
considers the statement a typographical error.
3

Both parties refer to the various interactions between them as “occasions.” (Defs.’ SMF ¶ 17.)
The court adopts the same term in an effort to maintain consistency.

3

However, during these occasions, O’Connor also worked part-time for the
Village of Hancock Police Department under the exclusive authority of
Hancock’s police chief. (Id. ¶¶ 33-34, 37.) Plaintiffs contend that
O’Connor was primarily involved in the Hancock stops on occasions 7, 15,
21, and 28. (Pls.’ SMF ¶¶ 286, 298-99, 309, 320.)
Several of the remaining occasions were not traffic stops. For
instance, occasion 5 consisted of Corey receiving a parking ticket for
parking illegally in the Village of Deposit employee parking lot; he was not
present when the ticket was issued, and he later paid the applicable fine.
(Defs.’ SMF ¶¶ 40-41, 43.) Occasion 6 occurred in the early afternoon
when Cantwell pulled his police car parallel to Corey’s car in a store
parking lot and advised him not to speed, after learning from a crossing
guard that Corey had been speeding by the high school earlier. (Id. ¶¶ 4454.) Occasion 31 involved Troy and a non-party Deposit officer engaging
in a casual conversation in a public parking lot wherein no directives were
given and Troy’s ability to leave was not impeded. (Id. ¶¶ 240-61.)
The remaining occasions involved traffic stops based on defendants’
direct observations or other sources of reasonable suspicion for various
vehicle and traffic violations. For instance, occasion 9 consisted of a non4

party Deposit officer, who was with Williamson, stopping Corey’s car after
they observed him driving with an expired inspection sticker and later
learned that he did not have a valid license. (Id. ¶¶ 55-70.) Similarly,
occasion 10 consisted of Singleton and Williamson pulling over Corey
shortly thereafter upon their suspicion that he still did not have a valid
license, at which point he produced a valid license and was sent on his
way without a citation. (Id. ¶¶ 71-81.)
About a week later, occasion 12 occurred, which consisted of
O’Connor observing Corey traveling at a high rate of speed, as confirmed
by the use of a radar gun, and pulling him over to issue a traffic infraction
ticket. (Id. ¶¶ 96-106.) Over two weeks later, occasion 13 occurred, which
consisted of Singleton and O’Connor initiating a traffic stop of Troy’s car
after observing Corey and Troy following their patrol cars around for hours
while making obscene gestures and exhibiting other threatening behavior
late at night. (Id. ¶¶ 111-38.) After a brief conversation, defendants did
not issue Troy a citation. (Id. ¶¶ 139-43.)
A few months later, occasion 18 occurred, which consisted of a nonparty Deposit officer issuing Corey a ticket for driving with an illegal window
tint after observing a vehicle with “opaque” windows. (Id. ¶¶ 144-59.) A
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month or so later, occasion 19 occurred, which involved Williamson pulling
over Dawn after noticing that she was operating a vehicle without a clearly
visible license plate. (Id. ¶¶ 169-73.) Upon pulling her over and examining
the vehicle more closely, Williamson realized the rear license plate lamp
only appeared inoperable because it was covered in dirt, so he allowed her
to proceed without issuing a traffic citation. (Id. ¶¶ 173-77.)
Occasion 22 occurred months later when Williamson and Singleton
received a report that a car was being driven with an invalid license plate.
(Id. ¶¶ 178-83.) After pulling the car over, which Corey was driving, the
officers verified that the car’s license plate did not match its registration,
but decided not to issue a ticket because the violation was an honest
mistake. (Id. ¶¶ 184-90.) Less than a month later, occasion 23 occurred,
which involved Williamson pulling over Corey after observing a passenger
riding in the bed of his pickup truck. (Id. ¶¶ 191-94.) Williamson issued
Corey a verbal warning about the hazards of such conduct and allowed
him to proceed on his way. (Id. ¶¶ 195-96.) About two months after this
occasion, Williamson and Singleton stopped Corey for driving with an
impermissibly loud exhaust system and issued him a verbal warning, which
constituted occasion 24. (Id. ¶¶ 197-203.)
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Days later, occasion 25 occurred, which consisted of Smith and
Williamson observing Troy traveling at a high rate of speed, as confirmed
by the use of a radar gun, and pulling him over to issue a ticket. (Id.
¶¶ 204-10.) About four months later, occasion 29 occurred, which similarly
consisted of Smith observing Corey traveling at a high rate of speed, as
confirmed by the use of a radar gun, and pulling him over to issue a ticket.
(Id. ¶¶ 212-17.) After stopping Corey’s car, Smith discovered that his
vehicle inspection was expired, so he issued Corey a ticket for that as well.
(Id. ¶¶ 218-19.) Minutes after Corey was issued these two tickets,
occasion 30 occurred when he pulled alongside Smith, rolled down his
window, uttered a vulgarity, disobeyed Smith’s directions, and spun his
tires as he left the scene. (Id. ¶¶ 221-28.) Upon pursuing and eventually
pulling over Corey again, Smith decided not to issue any new tickets. (Id.
¶¶ 229-39.)
Nearly one month later, occasion 32 occurred, which involved Smith
and Williamson pulling over Dawn and issuing her a ticket after they
allegedly observed her driving while using her cell phone. (Id. ¶¶ 265-71.)
Although plaintiffs contend that “Dawn was not holding her phone,” (Pls.’
SMF ¶¶ 269-70), they admit that the Village of Deposit Justice Court
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convicted her of the charge following a bench trial, (Defs.’ SMF ¶ 272).
B.

Procedural History
Defendants removed this action to federal court after plaintiffs

originally filed their complaint in New York State Supreme Court in Broome
County. (Dkt. No. 1.) At the close of discovery, defendants moved for
summary judgment on plaintiffs’ claims. (Dkt. No. 30.)
III. Standard of Review
The standard of review pursuant to Rule 56 of the Federal Rules of
Civil Procedure is well established and will not be repeated here. For a full
discussion of the standard, the court refers the parties to its decision in
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom.
Wagner v. Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion4

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First, it should be noted that plaintiffs’ complaint fails to enumerate specific causes of action or
to trace factual allegations to specific legal theories. (Compl.) When plaintiffs are represented by legal
counsel, neither the court nor defendants should have to engage in guesswork to address every possible
legal theory of a constitutional violation that is not clearly delineated in their complaint. As such, an
inference that plaintiffs have abandoned several of their claims is “fairly drawn from the papers and
circumstances viewed as a whole.” Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014).
Specifically, plaintiffs have constructively abandoned their First Amendment claim by failing to point to
any government abridgment of their protected speech rights and raising no arguments as to why
defendants’ motion to dismiss should not be granted in this regard. (Compl. ¶ 29; Dkt. No. 34, Attach. 5.)
Additionally, their Fifth Amendment claim’s abandonment is inferred from the dearth of federal action
alleged. See Dusenbery v. United States, 534 U.S. 161, 167 (2002). Moreover, other claims are
discussed in the parties’ briefs that are not included in plaintiffs’ complaint whatsoever. As such, if they
ever existed, these claims are dismissed.

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A.

Statute of Limitations
In New York, § 1983 claims must be brought within three years. See

Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
Occasion 1 involved the State Police and occurred on July 23,
2011––more than three years before the filing of plaintiffs’ complaint on
May 18, 2015. (Defs.’ SMF ¶¶ 18, 19.) As such, even if defendants were
personally involved on this occasion, it is dismissed.5
B.

Lack of Personal Involvement
It is well settled that a plaintiff seeking monetary damages under

§ 1983 must demonstrate defendants’ personal involvement in the alleged
constitutional deprivation. See Provost v. City of Newburgh, 262 F.3d 146,
154 (2d Cir. 2001). Plaintiffs initially admitted to defendants’ lack of
personal involvement in numerous stops. (Defs.’ SMF ¶¶ 19-22, 28-31.)
Now, without citing any evidence in the record, plaintiffs try to rebut these
admissions by claiming that defendants provided backup support for traffic
stops that they did not initiate. (Dkt. No. 34, Attach. 5 at 2-4.) This is
insufficient. Plaintiffs fail to raise a genuine issue of material fact regarding
5

Plaintiffs argue that defendants’ conduct occurring outside the statute of limitations period is not
time barred based on a “continuing course of treatment” theory. (Dkt. No. 34, Attach. 5 at 15-16.)
However, a similar theory presented to the court in Singleton v. City of New York, 632 F.2d 185, 192 (2d
Cir. 1980) was rejected.

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defendants’ lack of personal liability for the actions of other independent
police entities that exclusively initiated the traffic stops on occasions 1-4, 8,
11, 14, 16-17, 20, 26-27, and 33. Accordingly, for the reasons stated by
defendants, (Dkt. No. 30, Attach. 12 at 1-3; Dkt. No. 38 at 2-3), summary
judgment is granted on these claims and they are dismissed. However,
plaintiffs have sufficiently demonstrated O’Connor’s personal involvement
with respect to occasions 7, 15, 21, and 28. (Pls.’ SMF ¶¶ 286, 298-99,
309, 320.) Because defendants fail to address the specifics of these
occasions, the claims stemming from these stops survive.
C.

Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” Notably, consensual encounters between police
officers and citizens do not trigger Fourth Amendment scrutiny. See
Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[A] seizure does not occur
simply because a police officer approaches an individual and asks a few
questions.”); Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Obviously, not all
personal intercourse between police[] [officers] and citizens involves
‘seizures’ of persons. Only when the officer, by means of physical force or
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show of authority, has in some way restrained the liberty of a citizen may
we conclude that a ‘seizure’ has occurred.”). However, a traffic stop, even
if only for a limited period and purpose, may constitute a seizure within the
meaning of the Fourth Amendment. See Whren v. United States, 517 U.S.
806, 809-10 (1996) (collecting cases); see also Gilles v. Repicky, 511 F.3d
239, 244-45 (2d Cir. 2007). As such, a traffic stop must at least be based
on a reasonable suspicion of a traffic violation in order to comport with the
Fourth Amendment. See United States v. Stewart, 551 F.3d 187, 191 (2d
Cir. 2009). All that reasonable suspicion requires is “some minimal level of
objective justification.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation marks and citation omitted). Additionally, a subsequent
conviction precludes false arrest claims. See Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996).
1.

Casual Encounters

Occasions 6 and 31 involved casual encounters between plaintiffs
and defendants, which do not trigger Fourth Amendment scrutiny. See
Bostick, 501 U.S. at 434; Terry, 392 U.S. at 19 n.16. Furthermore, there is
no seizure involved with placing a parking ticket on an unattended car as
occurred on occasion 5. See Burg v. Gosselin, 591 F.3d 95, 101 (2d Cir.
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2010) (finding that “a pre-arraignment, non-felony summons requiring no
more than a later court appearance does not constitute a Fourth
Amendment seizure.”). For these reasons, and the reasons stated by
defendants, (Dkt. No. 30, Attach. 12 at 3-5), the claims stemming from
these occasions are dismissed.
2.

Traffic Stops

Plaintiffs fail to controvert the fact that the remaining traffic stops
were based upon defendants’ reasonable suspicions of traffic violations or
other criminal activity. (Dkt. No. 30, Attach. 12 at 1-2.) For the majority of
their legal arguments and factual assertions, plaintiffs fail to provide any
citations whatsoever. (Dkt. No. 34, Attach. 5.) Where plaintiffs do provide
citations, they cut against their argument. (Id. at 4, 6.)
For instance, plaintiffs rely on City of Indianapolis v. Edmond, 531
U.S. 32, 48 (2000), (Dkt. No. 34, Attach. 5 at 4), where the Supreme Court
found that a checkpoint program with the primary purpose of detecting
evidence of ordinary criminal wrongdoing violated the Fourth Amendment.
Notable in that decision was the lack of any individualized suspicion on
behalf of the officers conducting the checkpoint stop. See Edmond, 531
U.S. at 44. Moreover, the Court made clear that the decision “does not
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impair the ability of police officers to act appropriately upon information that
they properly learn during a checkpoint stop justified by a lawful primary
purpose.” Id. at 48 (emphasis added). Here, for starters, there are no
checkpoint stops alleged. Secondly, plaintiffs have not controverted the
lawful primary purpose of the majority of traffic stops presented by
defendants. See supra Part II. A. In United States v. Martinez–Fuerte,
428 U.S. 543, 561-63 (1976), another case plaintiffs rely upon, (Dkt. No.
34, Attach. 5 at 5), the Supreme Court upheld permanent check point stops
where their purpose was legitimate and intrusion was minimal. There, the
Court reasserted that “one’s expectation of privacy in an automobile and of
freedom in its operation are significantly different from the traditional
expectation of privacy and freedom in one’s residence.” Id. at 561.
Plaintiffs fail to articulate how this inapposite case law supports their
claims.
Without the need for further discussion, plaintiffs’ claims ultimately
crumble based on the previously-discussed admissions to the majority of
defendants’ statement of material facts, which demonstrate that the traffic
stops were based on reasonable suspicions of traffic violations. See
Stewart, 551 F.3d at 191. Plaintiffs only deny the observations giving rise
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to the traffic stop on occasion 32. (Pls.’ SMF ¶¶ 268-70.) However, their
admission that Dawn was later convicted of a traffic infraction based on
this occasion, (id. ¶ 272), conclusively demonstrates the existence of
probable cause. See Weyant, 101 F.3d at 852.
In conclusion, plaintiffs fail to point to any credible evidence of
defendants’ improper motive and largely resurrect arguments that should
have been made in local traffic court. As such, plaintiffs’ Fourth
Amendment claims stemming from occasions 9-10, 12-13, 18-19, 22-25,
29-30, and 32 are dismissed.6 See supra Part II. A.
D.

Fourteenth Amendment
1.

Due Process7

The Fourteenth Amendment is not the proper avenue for protection
from the conduct plaintiffs complain of. See Albright v. Oliver, 510 U.S.
266, 269-75 (1994) (“Where a particular Amendment ‘provides an explicit

6

Defendants’ qualified immunity analysis would have provided alternative grounds for summary
judgment, (Dkt. No. 30, Attach. 12 10-20); however, “where there is no viable constitutional claim,
defendants have no need of an immunity shield,” Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017)
(internal quotation marks and citation omitted).
7

Plaintiffs fail to specify whether they are claiming a violation of their procedural or substantive
due process rights. (Compl. ¶ 29.) However, it is apparent from the facts alleged and their responsive
papers that they are claiming a violation of their substantive due process rights. (Id. ¶ 10; Dkt. No. 34,
Attach. 5.) Notably, the record does not reflect that plaintiffs were denied access to the legal process
available to contest any perceived deprivation of their liberty. Therefore, the court analyzes plaintiffs’
claims through the lens of substantive due process.

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textual source of constitutional protection’ against a particular sort of
government behavior, ‘that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing these claims.’”)
(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). This is so
because the “guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992). As such, plaintiffs due process claims
are more properly addressed in the Fourth Amendment context––and fail
for the reasons discussed above.
2.

Equal Protection

Plaintiffs also argue that defendants’ selective enforcement of the
vehicle and traffic laws violated their rights under the Equal Protection
Clause of the Fourteenth Amendment. (Dkt. No. 34, Attach. 5 at 11-12.)
In order to succeed on an equal protection claim based on selective
enforcement, a plaintiff must prove that: “‘(1) the [plaintiff], compared with
others similarly situated, was selectively treated; and (2) that such
selective treatment was based on impermissible considerations such as
race, religion, intent to inhibit or punish the exercise of constitutional rights,
or malicious or bad faith intent to injure a person.’” Diesel v. Town of
15

Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000) (quoting LeClair v. Saunders,
627 F.2d 606, 609-10 (2d Cir. 1980)).
Although plaintiffs’ assertions of selective enforcement of the vehicle
and traffic law rely largely on speculation contained within their own
affidavits, (Dkt. No. 34, Attach. 5 at 12, 16-18; Pls.’ SMF ¶¶ 277, 288, 306,
311, 315, 329, 335), defendants fail to carry their initial burden of
demonstrating their entitlement to summary judgment. See Wagner, 827
F. Supp. 2d at 92. Given that defendants make no effort to address why
these claims should be dismissed, (Dkt. No. 30, Attach. 12; Dkt. No. 38),
their motion is denied in this regard.8
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
30) is GRANTED IN PART and DENIED IN PART as follows:
DENIED with respect to plaintiffs’ § 1983 claim based on a

8

Plaintiffs’ corresponding claims against the Village of Deposit and remaining defendants in their
official capacities also survive because defendants fail to demonstrate that they are entitled to judgment
as a matter of law by disregarding whether Cantwell was a final policy maker. (Dkt. No. 30, Attach. 12 at
5-6; Dkt. No. 38 at 6-7.) As such, at this stage, there remains a triable issue of fact regarding whether
Cantwell, as the chief of police involved in numerous stops, was a policy maker who encouraged or
ratified a tacit policy of selective enforcement based on an improper business motive. (Pls.’ SMF ¶¶ 277,
329; Dkt. No. 34, Attach. 5 at 7-9.)

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violation of the Equal Protection Clause against all defendants
and plaintiffs’ § 1983 claim based on a violation of the Fourth
Amendment involving only occasions 7, 15, 21, and 28 against
defendant Jonathan O’Connor; and
GRANTED in all other respects; and it is further
ORDERED that this case is deemed trial ready and a scheduling
order shall issue in due course; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 2, 2018
Albany, New York

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