Burdick v. Oswego County et al
Filing
225
ORDER granting 201 and 209 Motions for Summary Judgment; denying 222 Letter Request as moot. Plaintiff's Second Amended Complaint is dismissed with prejudice. Signed by Senior Judge Norman A. Mordue on 3/28/2019. (Attachments: # 1 Unpublished cases) (Copy served on plaintiff via regular and certified mail)(rjb, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
STEVEN D. BURDICK,
Plaintiff,
v.
5:12-cv-1711 (NAM/DEP)
DAVID SWARTS, JAMES F. DARLING,
RUELL TODD, OSWEGO COUNTY, and
JOHN AND JANE DOE 1-10,
Defendants.
______________________________________________________
APPEARANCES:
Steven D. Burdick
4102 State Route 3
Fulton, New York 13069
Plaintiff, pro se
Office of Frank W. Miller
Frank W. Miller, Esq., of counsel
Christopher M. Militello, Esq., of counsel
6575 Kirkville Road
East Syracuse, New York 13057
Attorney for Defendants Oswego County, Todd, and Darling
Office of Attorney General, State of New York
Timothy P. Mulvey, Esq., of counsel
615 Erie Boulevard West, Suite 102
Syracuse, New York 13204
Attorney for Defendant Swarts
Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Steven D. Burdick, who at one point in this litigation was represented by
counsel but is now proceeding pro se, brings this action under 42 U.S.C. § 1983 asserting claims
against Defendants David Swarts, the former New York State Commissioner of Motor Vehicles
(“Commissioner Swarts”), Oswego County, retired Oswego County Sheriff Ruell Todd
(“Sheriff Todd”), and Oswego County Deputy Sheriff James F. Darling (“Deputy Darling”)
(collectively, the “Oswego County defendants”), related to a traffic stop and subsequent arrest
on November 22, 2009. (Dkt. No. 157). Now before the Court are Defendants’ motions for
summary judgment. (Dkt. Nos. 201, 209). Plaintiff opposes the motions. (Dkt. Nos. 208, 216,
220). Defendants’ motions are granted, for the reasons that follow.
II.
BACKGROUND
A. Evidence Before the Court
On June 1, 2018, Commissioner Swarts moved for summary judgment, (Dkt. No. 201),
and included a Statement of Material Facts pursuant to Local Rule 7.1(a)(3), (Dkt. No. 201-1).
The motion also notified Plaintiff of the consequences of not properly responding, pursuant to
Rule 56(e) of the Federal Rules of Civil Procedure and Local Rule 56.2. (Dkt. No. 201, p. 1).
However, Plaintiff’s opposition does not specifically respond to Commissioner Swarts’s
Statement of Material Facts; rather Plaintiff “relies on his statement of material facts contained
within his third amended complaint.” (Dkt. No. 208, p. 2). Similarly, on July 31, 2018, the
County Defendants moved for summary judgment, (Dkt. No. 209), and included a Statement of
Material Facts, (Dkt. No. 209-20). Counsel affirms that Plaintiff was served with the Court’s
form Notification of the Consequences of Failing to Respond to a Summary Judgment Motion,
(Dkt. No. 210). Once again, Plaintiff’s opposition does not specifically respond to the movants’
Statement of Material Facts; rather Plaintiff sets out his own version of the facts in memoranda
of law, without citing any evidence, and attaches several exhibits. (Dkt. Nos. 216, 216-1).
Plaintiff later submitted an additional memorandum, (Dkt. No. 220), which Defendants move to
1
strike as “an improper surreply filed without leave.” (Dkt. No. 222). The additional
memorandum appears to be simply a notarized version of an earlier one. (See Dkt. No. 216).
Neither memorandum is sworn under oath, or declared under penalty of perjury pursuant to 28
U.S.C. § 1746. Therefore, neither memorandum is admissible as evidence. See also Hughes v.
Elmira College, 584 F. Supp. 2d 588, 590 (W.D.N.Y. 2008) (finding that the pro se plaintiff’s
statement and memorandum of law were unsworn and inadmissible). Accordingly, Defendants’
motion to strike is denied as moot.
Under these circumstances, the Court may accept Defendants’ statements of facts as true
where appropriate, supported by the record, and unchallenged by Plaintiff with admissible
evidence. 1 See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (reasoning that even pro se
litigants “should be on notice from the very publication of Rule 56(e) that a party faced with a
summary judgment motion may not rest upon the mere allegations or denials of the party’s
pleading and that if the party does not respond properly, summary judgment, if appropriate, shall
be entered against him”) (quoting Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)); Riehl
v. Martin, No. 13 Civ. 439, 2014 WL 1289601, at *5, 2013 U.S. Dist. LEXIS 186610, at *12,
(N.D.N.Y. Dec. 19, 2013) (“Where, as here, a party has failed to respond to the movant’s
statement of material facts in the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the
movant’s statement will be accepted as true (1) to the extent they are supported by evidence in
the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the
possible consequences of failing to respond to the motion.”), report-recommendation adopted,
2014 WL 1289601, 2014 U.S. Dist. LEXIS 42870 (N.D.N.Y. Mar. 31, 2014).
1
Although Plaintiff is now appearing pro se, it is worth noting that this case is the second one
Plaintiff has pursued to the summary judgment stage in federal court in the Northern District of
New York. See Burdick v. Kurilovitch, et al., No. 14 Civ. 1254.
2
While the Court “is not required to consider what the parties fail to point out,” in
deference to Plaintiff’s pro se status and out of an abundance of caution, the Court has
nevertheless conducted “an assiduous review of the record” to determine whether there is
evidence that might support any of Plaintiff’s claims. Holtz v. Rockefeller & Co., 258 F.3d 62,
73 (2d Cir. 2001). Therefore, the following facts are largely taken from Defendants’ statements
of facts and supporting evidence, Plaintiff’s deposition and trial testimony, and the evidence
submitted by Plaintiff, to the extent it is in admissible form.
B. Plaintiff’s License Suspension
Plaintiff is a tow truck operator who resides in Oswego County, New York. (Dkt. No.
201-1, ¶ 6). On January 14, 2009, Plaintiff was issued a traffic ticket for towing on the New
York State Thruway without a permit. (Dkt. No. 209-2). Thereafter, Plaintiff’s driver’s license
was suspended on or about July 3, 2009. (Id.). Plaintiff testified that he paid the ticket, faxed
the receipt to the Fulton Department of Motor Vehicles (“DMV”), and was told “you’re all set.”
(Dkt. No. 209-4, pp. 15–16).
C. Plaintiff’s Arrest
On November 22, 2009, Plaintiff drove a van to a vehicle checkpoint on State Route 49
in Central Square, Oswego County, which was monitored by Defendant Darling, a deputy
employed by Defendant Oswego County in its Sheriff’s Department. (Dkt. No. 209-20, ¶¶ 2, 5–
6). The van Plaintiff drove had no inspection sticker on it. (Id., ¶ 7). Deputy Darling noticed
the inspection sticker was missing and directed Plaintiff to pull over into a nearby parking lot.
(Id., ¶ 8). Plaintiff pulled the van over into the parking lot. (Id., ¶ 9). Deputy Darling asked
Plaintiff about the missing inspection sticker. (Id., ¶ 10). Plaintiff told Deputy Darling that the
sticker must have fallen off. (Id., ¶ 11). Deputy Darling asked Plaintiff to provide proof that the
3
van had been inspected. (Id., ¶ 12). Plaintiff told Deputy Darling that he did not have the
inspection paperwork. (Id., ¶¶ 13–14).
Deputy Darling told Plaintiff that he would give Plaintiff a ticket, and Deputy Darling
asked Plaintiff for his driver’s license, registration card, and proof of insurance. (Id., ¶¶ 15–16).
Plaintiff did not have his driver’s license with him, and he did not have a current valid insurance
card for the van or the registration card for the van. (Id., ¶¶ 17–19). Deputy Darling went to his
patrol car and checked a computer system for vehicle and personal data from the DMV
concerning Plaintiff. (Id., ¶ 20). The information returned in response to the inquiry was that
Plaintiff’s driver’s license was currently suspended. (Id., ¶ 21).
When Deputy Darling returned to the van, he found Plaintiff sitting in the driver’s seat of
the van with his eighteen-month old child in his lap. (Dkt. No. 209-3, p. 10). According to
Deputy Darling, he told Plaintiff that his license was suspended and that he had to place the
child in the passenger’s seat and to step out of the van. (Id). Deputy Darling testified that
Plaintiff did not put the child aside or get out of the van as instructed, but rather said that his
license was not suspended, and it was “taken care of.” (Id.). Deputy Darling testified that
Plaintiff repeatedly refused to get out of the van, saying “No, I’m not getting out.” (Id., p. 13).
Deputy Darling testified that Plaintiff continued to hold the child. (Id.).
According to Deputy Darling, Plaintiff then stepped out of the van with the child, lifted
the child up away from his body toward Deputy Darling, pulled the child back to his body, got
back in the van, and sat back in the driver’s seat with the child on his lap again. (Id.). Plaintiff
then continued to argue with Deputy Darling. (Id.). Deputy Darling testified that he had to tell
Plaintiff to step out of the van a total of ten times. (Id., p. 15). Eventually, Plaintiff put the child
in the passenger’s seat, and Deputy Darling arrested him and took him into custody. (Id., p. 16).
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Plaintiff admitted that, on November 22, 2009, when Deputy Darling first instructed him
to put the child aside and step out of the van because he was under arrest, he did not put the
child aside or get out of the vehicle, and instead told Deputy Darling that a ticket he had
received in the Town of Van Buren, New York had been paid. (See Dkt. No. 209-4, pp. 15–18;
Dkt. No. 209-5, pp. 2–3). Plaintiff further testified that Deputy Darling informed him again that
he was under arrest and to put his child to the side, but Plaintiff refused and proposed that
Deputy Darling call a tow truck and just give Plaintiff a traffic ticket. (Dkt. No. 209-5, p. 3).
Plaintiff testified that he had been pulled over for the same thing three months earlier, that he
had gone to the DMV and taken care of it, and that he told Deputy Darling “it’s a mistake.”
(Id.). Plaintiff testified that Deputy Darling again told him that he was under arrest and to put
the child aside, but Plaintiff refused because he wanted to first put the child in a car seat. (Id.).
Plaintiff testified that Deputy Darling again repeated the instruction, and Plaintiff finally got out.
(Id.).
According to Deputy Darling, Plaintiff’s positioning of the child delayed the arrest
because Deputy Darling was concerned for the child’s safety. (Dkt. No. 209-3, p. 17). Deputy
Darling testified that, before the situation escalated, he had intended to arrest Plaintiff and take
him into custody in his patrol car on a charge of aggravated unlicensed operation of a motor
vehicle in the third degree, issue him traffic tickets, and then release him. (Id., pp. 15–16).
After Plaintiff resisted his instructions to step out of the van and put the child aside, and then
held the child between himself and the officer, Deputy Darling decided to arrest Plaintiff and
take him into custody for arraignment upon charges of obstruction of governmental
administration and endangering the welfare of a child, as well as the aggravated unlicensed
operation of a motor vehicle charge. (Id.).
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According to Ronald L. Casselman, on November 22, 2009, he received a call from the
police to “go to Central Square and bring the Burdick company tow truck to tow Steve
Burdick’s car and get the kids as Steve was an unlicensed driver and could not operate the car.”
(Dkt. No. 216-1, p. 23). When Casselman arrived, he found Plaintiff handcuffed in the back of
an Oswego County Sheriff’s car. (Id.). Casselman states that he “told the Sheriff there must be
some mix-up [about the suspended license] because Steve had paid that fine.” (Id.). Plaintiff’s
wife arrived at the scene and took the kids, while Casselman towed Plaintiff’s vehicle. (Id.).
D. Plaintiff’s Prosecution
Plaintiff was arraigned the same day as his arrest, November 22, 2009, at
approximately 2:25 p.m., which was not long after Deputy Darling brought him to the police
station. (Dkt. No. 209-17, ¶ 6). Plaintiff was charged with:1) aggravated unlicensed operation
of a motor vehicle in the third degree; 2) endangering the welfare of a child; 3) obstruction of
governmental administration in the second degree; and 4) vehicle registration and inspection
violations. (Dkt. No. 209-13).
Following his arraignment, Plaintiff called Defendant Todd, the Sheriff of Oswego
County, and asked to meet with him concerning the arrest and charges. (Dkt. No. 209-20, ¶¶ 3,
39). Sheriff Todd advised Plaintiff it would not be in Plaintiff’s best interest for them to meet,
and that any admissions Plaintiff made to Sheriff Todd could be used against him in the criminal
case. (Id., ¶ 39). Plaintiff insisted, and they met on November 24, 2009. (Id., ¶¶ 39–40).
Sheriff Todd began the meeting by reminding Plaintiff that any admissions he made could be
used against him. (Id., ¶ 41). During the meeting, Plaintiff made several admissions, which
Sheriff Todd reported to the Oswego County District Attorney’s Office in the form of a “Notice
of Intent to Use Admission or Confession” pursuant to New York Criminal Procedure Law §
6
710.30 (or “710.30 notice”). (Dkt. No. 209-12). The 710.30 notice stated in relevant part:
“Admissions of no insp. sticker, no letter saying suspension was lifted. Admissions to holding
child in front of him and refusing to get out of van.” (Id.). Later, on August 26, 2010,
Defendants Darling and Todd also testified at a Huntley hearing, which concerned the
admissibility of certain statements made by Plaintiff. (Dkt. No. 209-11).
On August 26, 2011, Plaintiff appeared for a criminal trial before a jury on charges of
endangering the welfare of a child, obstruction of governmental administration, and vehicle
registration and inspection violations. (Dkt. Nos. 209-3, 209-4). Plaintiff claims that the
aggravated unlicensed operation charge was dismissed by the judge in his criminal case a couple
weeks before the trial. (Dkt. No. 209-6, p. 2). Defendants Darling and Todd testified at the trial
concerning the events leading up to Plaintiff’s arrest on November 22, 2009, and Plaintiff’s
admissions on November 24, 2009. (Dkt. Nos. 209-3, 209-4).
Among other things, Deputy Darling testified that he told Plaintiff to step out of the
vehicle ten times before Plaintiff complied, and that Plaintiff held onto the child, delaying
Plaintiff’s arrest. (Dkt. No. 209-3, pp. 15–17). Among other things, Sheriff Todd testified that
Plaintiff admitted that: he did not have paperwork with him on November 22, 2009 showing that
he had fixed his suspended license; that he refused to exit the vehicle, and that “he picked the
child up and put it in front of him.” (Dkt. No. 209-4, pp. 10–11). Sheriff Todd testified that
traffic stop escalated into an arrest because Plaintiff “just didn’t do what he was asked to do.”
(Id., p. 10).
On August 27, 2011, a jury convicted Plaintiff of obstruction of governmental
administration, as well as failure to produce a registration certificate and operating an
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uninspected motor vehicle. (Dkt. No. 209-4, pp. 23–24). The jury acquitted Plaintiff of
endangering the welfare of a child. (Id.).
E. Plaintiff’s Appeal
Plaintiff appealed his convictions, and on March 3, 2014, an Oswego County court
overturned the convictions due to an error in jury selection by the judge in the criminal trial.
(Dkt. No. 209-9). The court rejected various arguments as to the merits of the charges and
remanded for a new trial. (Id.). By decision dated April 26, 2016, a judge of the Hastings Town
Court dismissed the surviving charges (obstruction of governmental administration, failure to
produce a registration certificate, and operating an uninspected motor vehicle) in the interests of
justice pursuant to New York Criminal Procedure Law § 170.40. (Dkt. No. 209-10). Among
other things, the judge found that:
1) No arrest would have arisen should the DMV database been
properly updated.
2) The only harm caused by the offense was to the equities of the
Defendant for the costs of his defense, which could be the
responsibility of the NYS DMV.
3) Any evidence in this case is secondary to the cause and effect
relationship of the NYS DMV failure to update their systems.
4) The Court does not see misconduct on behalf of any Police
Agency, but rather it appears that the Defendants actions could
have been more amiable in order to resolve the issues presented.
5) Quite possibly the end result would be one of a fine and
surcharge, both of which the Court feels New York State would
rather see justice served.
6) The Court sees no useful purpose regarding a judgement of
conviction.
(Id.).
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III.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). The moving party bears the initial burden of demonstrating “the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the
outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248; see also Jeffreys v. City of New York., 426 F.3d 549, 553 (2d Cir. 2005) (citing
Anderson). The movant may meet this burden by showing that the nonmoving party has
“fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S.
at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (summary
judgment appropriate where the non-moving party fails to “come forth with evidence sufficient
to permit a reasonable juror to return a verdict in his or her favor on an essential element of a
claim”) (internal quotation marks omitted).
If the moving party meets this burden, the nonmoving party must “set forth specific
facts showing . . . a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex,
477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a
summary judgment motion, the district court must construe the facts in the light most favorable
to the non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.
9
2003). Still, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986) (quoting Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves
create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)
(alterations in original) (internal quotation marks and citations omitted)).
IV.
DISCUSSION
As explained in the Court’s Memorandum-Decision & Order dated August 31, 2017,
Plaintiff’s remaining claims in this case are as follows: 1) as against Deputy Darling, federal and
state law malicious prosecution and First Amendment retaliation; 2) as against Sheriff Todd,
federal and state law claims for malicious prosecution and a federal claim for supervisory
liability; 3) as against Oswego County, vicarious liability under New York State law for the
actions of Deputy Darling and Sheriff Todd; and 4) as against Commissioner Swarts and the
John Doe Defendants, an apparent federal due process claim, with related claims for supervisory
and Monell liability. (Dkt. Nos. 155, 157). The Court will discuss each claim in turn.
A. Malicious Prosecution
The Defendants argue that Plaintiff’s Section 1983 malicious prosecution claim fails for
several reasons, including: 1) the “for lack of an unconstitutional detention”; and 2) the
immunity defenses applicable to their actions. (Dkt. No. 209-21, pp. 8–18). The elements of a
malicious prosecution claim under New York law are: 1) the defendant initiated a prosecution
10
against the plaintiff; 2) the defendant lacked probable cause to believe the proceeding could
succeed; 3) the defendant acted with malice; and 4) the prosecution was terminated in the
plaintiff’s favor. See Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000);
Colon v. City of New York, 60 N.Y.2d 78, 82 (1983).
1. Unconstitutional Seizure
“When raising a malicious prosecution claim under Section 1983, a plaintiff must also
show a ‘seizure or other perversion of proper legal procedures implicating the claimant’s
personal liberty and privacy interests under the Fourth Amendment.’” Mitchell v. City of New
York, 841 F.3d 72, 79 (2d Cir. 2016) (quoting Washington v. County of Rockland, 373 F.3d 310,
316 (2d Cir. 2004)). The issue is generally a matter of law for the court, and the Second Circuit
has “consistently held that a post-arraignment defendant who is ‘obligated to appear in court in
connection with [criminal] charges whenever his attendance [i]s required’ suffers a Fourth
Amendment deprivation of liberty.” Swartz, 704 F.3d at 112 (quoting Murphy v. Lynn, 118 F.3d
938, 946 (2d Cir. 1997)); see also Perez v. Duran, 962 F. Supp. 2d 533, 541 (S.D.N.Y. 2013)
(discussing seizure requirement and court appearances).
Defendants argue that Plaintiff cannot show any unconstitutional detention for the
federal malicious prosecution claim because “all the ‘seizures’ of which Plaintiff could
complain – any mandatory court appearances, and his trial – each time occurred due to the
charge of obstructing governmental administration as well as the other charges against him.”
(Dkt. No. 209-21, p. 9). Defendants further argue that the charge for obstructing governmental
administration “was not resolved favorably to Plaintiff because – following his conviction in the
jury trial and the reversal on a technicality on appeal – that charge was ultimately dismissed in
the interests of justice.” (Id., p. 10). Defendants argue that “[b]ecause any court appearances
11
and the trial were all necessitated by a charge as to which there was no favorable termination,
those ‘seizures’ could not form the basis of a malicious prosecution claim, and were all
constitutional as a matter of law.” (Id.). Plaintiff’s opposition papers do not appear to respond
to this argument. (Dkt. Nos. 216, 218).
Here, the undisputed facts show that Plaintiff was charged with: 1) aggravated
unlicensed operation of a motor vehicle; 2) endangering the welfare of a child; 3) obstruction of
governmental administration; and 4) vehicle registration and inspection violations. (Dkt. No.
209-13). Further, the record shows that the first charge was dismissed, (Dkt. No. 209-6), and a
jury acquitted Plaintiff of child endangerment while convicting him of obstructing governmental
administration and the vehicle registration and inspection violations. (Dkt. No. 209-4, pp. 23–
24). It is undisputed that following Plaintiff’s appeal on various grounds, the Oswego County
Court found reversible error in the trial court’s jury selection process, reversed the judgment,
and remanded for a new trial. (Dkt. No. 209-9). Notably, the court rejected Plaintiff’s argument
that the jury’s conviction for obstruction of governmental administration was inconsistent with
the acquittal for child endangerment. (Id., pp. 4–6). The court pointed out that:
The People alleged that the defendant obstructed or prevented or
attempted to prevent a police officer from arresting the defendant by
holding an eighteen month old child up and put in front of him so
that the police officer was not able to take the defendant into
custody.
Based upon the testimony of Officer Darling . . . , the jury could
have found that the defendant obstructed, impaired, or perverted the
administration of law or other governmental function or prevented
or attempted to prevent a public servant from performing an official
function (i.e the defendant’s lawful arrest), by means of
intimidation, physical force, or interference (i.e. holding a child out
in front of him as a shield between himself and the arresting officer),
and that the defendant did so intentionally.
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(Id., pp. 5–6). Rather than hold a new trial, a Town Justice dismissed the case pursuant to
Section 170.40 of the New York State Rules of Criminal Procedure. (Dkt. No. 209-10). In
dismissing the case in “furtherance of justice,” the court emphasized that “[n]o arrest would
have arisen should the DMV database been properly updated,” and that “[t]he only harm caused
by the offense was to the equities of the Defendant for the costs of his defense, which could be
the responsibility of the NYS DMV.” (Id.). The court also highlighted that it “does not see
misconduct on behalf of any Police Agency, but rather it appears that the Defendants actions
could have been more amiable in order to resolve the issues.” (Id.). The court concluded that it
“sees no useful purpose regarding a judgment of conviction.” (Id.).
As this Court previously observed, a dismissal pursuant to Section 170.40 is not an
acquittal and typically does not support a malicious prosecution claim. (Dkt. No. 155, p. 12).
New York’s highest court has held that “any termination of a criminal prosecution, such that the
criminal charges may not be brought again, qualifies as a favorable termination, so long as the
circumstances surrounding the termination are not inconsistent with the innocence of the
accused.” Cantalino v. Danner, 754 N.E.2d 164, 167 (2001) (citing Smith-Hunter v. Harvey,
734 N.E.2d 750, 755 (2000)). Ultimately, “the question is whether, under the circumstances of
each case, the disposition was inconsistent with the innocence of the accused.” Id.
In this case, the circumstances surrounding the dismissal of the trial charges against
Plaintiff are clear and undisputed. As Defendants note, the Oswego County Court reversed on
the basis of a procedural error with jury selection, but rejected Plaintiff’s argument on the merits
of the obstruction charge. (Dkt. No. 209-9, pp. 5–6). In dismissing the case in “furtherance of
justice,” the trial court emphasized that “[n]o arrest would have arisen should the DMV database
been properly updated,” and that “[t]he only harm caused by the offense was to the equities of
13
the Defendant for the costs of his defense, which could be the responsibility of the NYS DMV.”
(Id.). The court also highlighted that it “does not see misconduct on behalf of any Police
Agency, but rather it appears that the Defendants actions could have been more amiable in order
to resolve the issues.” (Id.). The court concluded that it “sees no useful purpose regarding a
judgment of conviction.” (Id.). This rationale for dismissal does not show that Plaintiff was
innocent of the charges, or that Defendants lacked probable cause. Based on the record, the
Court finds that the charges against Plaintiff for obstruction of governmental administration and
vehicle registration and inspection violations were not terminated in his favor. (See also Dkt.
No. 155, p. 13).
That leaves two potentially viable charges for Plaintiff’s federal malicious prosecution
claim: 1) endangering the welfare of a child; and 2) aggravated unlicensed operation of a motor
vehicle. As the Court previously noted, Plaintiff was acquitted of the former, and the
circumstances surrounding the latter are not entirely clear. (See also Dkt. No. 155, p. 14).
However, Defendants correctly point out that further inquiry on these charges is not necessary
because Plaintiff’s federal malicious prosecution claim must rise or fall by showing an
unconstitutional seizure. The Second Circuit has held that a plaintiff cannot show such a seizure
unless it was “solely attributable” to the unlawful charges. Coleman v. City of New York, 688 F.
App’x 56, 58 (2d Cir. 2017). In that case, the plaintiff was charged with, among other things,
assault, obstruction of governmental administration, reckless driving, and traffic violations. The
Second Circuit sustained dismissal of the plaintiff’s malicious prosecution claim predicated on
the assault charges because “[e]ven if the assault charges had never been, [the plaintiff] still
would have had the obligation to appear on account of the other criminal charges (which cannot
support a malicious prosecution claim, because they were indisputably supported by probable
14
cause) and the traffic code violations (which cannot support a malicious prosecution claim
because they were terminated unfavorably to [the plaintiff] by [adjournment in contemplation of
dismissal]).” 688 F. App’x at 58.
Likewise, in this case Plaintiff cannot sustain a federal malicious prosecution claim
based on the child endangerment and aggravated unlicensed operation charges because the
record shows that, even if those charges had never been brought, he would have had the
obligation to appear in court on the obstruction of governmental administration charge. (See
Dkt. Nos. 209-3, 209-4, 209-9, 209-10, 209-13). As discussed above, the obstruction of
governmental administration charge cannot support a federal malicious prosecution claim
because it was not terminated in Plaintiff’s favor. Accordingly, based on the undisputed facts,
Plaintiff’s federal malicious prosecution claim must be dismissed. See also Warner v. Freeman,
No. 14 Civ. 1192, 2017 WL 4227655, at *2, 2017 U.S. Dist. LEXIS 154743, at *7 (D. Conn.
Sept. 22, 2017) (granting summary judgment on malicious prosecution claim where the plaintiff
failed to show “that he suffered a post-arraignment constitutionally cognizable deprivation of
liberty attributable to the criminal trespass charge”); Flynn-Rodriguez v. Cheng, No. 14 Civ.
2287, 2017 WL 3278889, at *3, 2017 U.S. Dist. LEXIS 120775, at *6 (E.D.N.Y. Aug. 1, 2017)
(“Though Ms. Flynn-Rodriguez suffered a deprivation of liberty, the resisting arrest charge was
not the sole cause of that deprivation; the deprivation was also caused by other charges that were
supported by probable cause. The malicious prosecution claim is dismissed.”); Othman v. City
of New York, No. 13 Civ. 4771, 2015 WL 1915754, at *6, 2015 U.S. Dist. LEXIS 54903, at *14
(E.D.N.Y. Apr. 27, 2015) (dismissing claim of malicious prosecution because the plaintiff failed
to allege “any deprivation of liberty that stems exclusively from those charges that may have
terminated in his favor”).
15
2. Immunity Defenses
Moreover, even if Plaintiff could show evidence of an unconstitutional seizure, his
malicious prosecution claim against Defendants Darling and Todd would fail because they are
entitled to absolute immunity and/or qualified immunity for their actions. It is well-established
that in Section 1983 actions, all witnesses, including police officers, are absolutely immune
from civil liability based on their testimony in judicial proceedings. Briscoe v. LaHue, 460 U.S.
325, 343 (1983). The Supreme Court observed that “[s]ubjecting government officials, such as
police officers, to damages liability under § 1983 for their testimony might undermine not only
their contribution to the judicial process but also the effective performance of their other public
duties.” Id. In judicial proceedings, the deterrent of potential civil liability is unnecessary to
prevent false testimony because perjury is a serious criminal offense. See Rehberg v. Paulk, 566
U.S. 356, 367 (2012). Therefore, Defendants Darling and Todd are entitled to absolute
immunity for their testimony at trial, even if it was false.
The same is also true for their testimony at the hearing pursuant to People v. Huntley,
204 N.E.2d 179 (1965) (providing a criminal defendant with a pre-trial hearing to determine
whether statements are admissible). The Second Circuit has recognized that “police officers
who testify at adversarial pretrial proceedings are entitled to absolute immunity from liability
based on that testimony.” Daloia v. Rose, 849 F.2d 74, 76 (2d Cir. 1988). Like a suppression
hearing, the purpose of the Huntley hearing was to determine the admissibility of statements
made by Plaintiff (then defendant). (Dkt. No. 209-11). Thus, Defendants Darling and Todd are
absolutely immune for all of their courtroom testimony in the criminal case against Plaintiff. 2
2
The record shows that Deputy Darling did not act as a “complaining witness” at the hearing,
which was focused on Plaintiff’s admissions. See Rehberg, 566 U.S. at 370.
16
See also Coggins v. Buonora, 776 F.3d 108, 113 (2d Cir. 2015) (finding that the defendant
officer was entitled to absolute immunity for grand jury testimony, but not for allegedly false
statements and reports that “laid the groundwork” for indictment).
The remaining question is whether Defendants Darling and Todd are immune from
liability for their other actions related to the prosecution. As to Deputy Darling, the record
shows that he provided information about Plaintiff’s arrest, which led to Plaintiff’s arraignment
shortly thereafter on November 22, 2009. (Dkt. No. 209-13). The Defendants argue that
Deputy Darling had at least “arguable probable cause,” and therefore he is entitled to qualified
immunity for initiating Plaintiff’s prosecution. (Dkt. No. 209-21, pp. 16, 22).
“Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
White v. Pauly, ___U.S.___, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation marks
omitted). “Qualified immunity protects public officials from liability for civil damages when
one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established
law, or (b) it was objectively reasonable for the defendant to believe that his action did not
violate such law.” Garcia v. Does, 779 F.3d 84, 92 (quoting Russo v. City of Bridgeport, 479
F.3d 196, 211 (2d Cir. 2007)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where
the relevant facts are not in dispute, the Court can decide qualified immunity as a matter of law.
See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990).
Probable cause is a “complete defense to a constitutional claim of malicious
prosecution.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014) (citations omitted)). Moreover,
qualified immunity is a defense on the same claim if there was arguable probable cause, which
17
“exists if either (a) it was objectively reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree on whether the probable cause
test was met.” Garcia, 779 F.3d at 92 (citation omitted). In determining whether an officer’s
challenged conduct was objectively reasonable, courts consider the information possessed by the
officer at the time of that conduct, but not the officer’s “subjective intent, motives, or beliefs.”
Id. In deciding qualified immunity, the Court will consider the facts available to Deputy Darling
at the time of arraignment, on each charge.
First, “a person is guilty of the offense of aggravated unlicensed operation of a motor
vehicle in the third degree when such person operates a motor vehicle upon a public highway
while knowing or having reason to know that such person’s license or privilege of operating
such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle
issued by the commissioner is suspended, revoked or otherwise withdrawn by the
commissioner.” N.Y. Veh. & Traf. Law § 511(a). It is undisputed that at the time of Plaintiff’s
arrest, Deputy Darling’s computer check of the DMV database showed that Plaintiff’s license
had been suspended, and that Plaintiff did not possess any paperwork showing otherwise. (Dkt.
No. 209-3, pp. 9–10; Dkt. No. 209-4, pp. 16–17; Dkt. No. 209-7, pp. 15–17; Dkt. No. 209-12).
At the motion to dismiss stage, the Court observed that it could not “determine whether and
when Deputy Darling knew or should have known that plaintiff’s license was not suspended.”
(Dkt. No. 155, p. 13). Now on summary judgment, the evidence shows that Deputy Darling
relied on the DMV information about Plaintiff’s license, both for the arrest and the arraignment,
which occurred in a short span on the same day. (Dkt. No. 209-17, ¶ 13; Dkt. No. 209-8, p. 12).
Although Plaintiff alleges that Deputy Darling should have known that the DMV information
was unreliable, (Dkt. No. 157, ¶ 220), he has not adduced any evidence in support of this theory,
18
nor has he shown that Deputy Darling learned of the mistake before Plaintiff’s arraignment. 3
Based on these facts, it was objectively reasonable for Deputy Darling to believe on November
22, 2009 that probable cause existed to charge Plaintiff for aggravated unlicensed operation of a
motor vehicle in the third degree.
Second, “a person is guilty of obstructing governmental administration when he
intentionally obstructs, impairs or perverts the administration of law or other governmental
function or prevents or attempts to prevent a public servant from performing an official function,
by means of intimidation, physical force or interference, or by means of any independently
unlawful act . . . .” N.Y. Penal Law § 195.05. In this case, it is undisputed that Plaintiff refused
repeated orders from Deputy Darling to get out of his vehicle. (See Dkt. No. 209-4, pp. 15–18;
Dkt. No. 209-5, pp. 2–3; Dkt. No. 209-12). It also undisputed that Plaintiff held onto his child
while doing so. (Id.). Based on these facts, it was objectively reasonable for Deputy Darling to
believe on November 22, 2009 that probable cause existed to charge Plaintiff for obstruction of
governmental administration.
Third, as relevant here, a person is guilty of endangering the welfare of a child when he
“knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a
child less than seventeen years old or directs or authorizes such child to engage in an occupation
involving a substantial risk of danger to his or her life or health.” N.Y. Penal Law § 260.10(1).
Again, it is undisputed that, while refusing Deputy Darling’s orders to exit the vehicle, Plaintiff
held onto his child. (See Dkt. No. 209-4, pp. 15–18; Dkt. No. 209-5, pp. 2–3; Dkt. No. 209-12).
Deputy Darling testified at the criminal trial that the child prevented him from arresting
3
Although Plaintiff submitted an affidavit from Casselman, who allegedly informed officers at
the scene that Plaintiff had paid the fine and “there must be some mix-up” about the license,
Deputy Darling was under no obligation to credit that explanation, absent supporting evidence.
19
Plaintiff, and that he was concerned about injuring the child. (Dkt. No. 209-3, p. 17). While
Plaintiff claims that he held on for the child’s safety, based on the facts available to Deputy
Darling at the time, Plaintiff’s conduct could also be viewed as likely to be injurious to the child.
At a minimum, officers of reasonable competence could disagree on whether there was probable
cause to charge Plaintiff for endangering the welfare of a child.
In sum, based on the undisputed facts, there was arguable probable cause to charge
Plaintiff with aggravated unlicensed operation of a motor vehicle, endangering the welfare of a
child, and obstructing governmental administration. Therefore, Deputy Darling is also entitled
to qualified immunity for initiating the prosecution on those charges.
As to Sheriff Todd, the record shows that, after arraignment, he met with Plaintiff on
November 24, 2009 to discuss the charges. (Dkt. No. 209-11, pp. 16–17; Dkt. No. 209-12).
Plaintiff requested the meeting and Sherriff Todd warned him that any admissions could be used
against him. (Dkt. No. 209-20, ¶¶ 39–40). In the meeting, Plaintiff made a series of admissions,
which Sheriff Todd reported to the Oswego County District Attorney’s Office, in the form of a
“Notice of Intent to Use Admission or Confession” pursuant to New York Criminal Procedure
Law § 710.30 (or “710.30 notice”). (Dkt. No. 209-12). The 710.30 notice stated in relevant
part: “Admissions of no insp. sticker, no letter saying suspension was lifted. Admissions to
holding child in front of him and refusing to get out of van.” (Id.). The 710.30 notice is
consistent with Plaintiff’s own testimony, (Dkt. No. 209-4, pp. 15–18), and Plaintiff has not
raised an issue of fact otherwise. Therefore, it was objectively reasonable for Sheriff Todd to
believe that his action, in preparing the notice and reporting it to the District Attorney’s Office,
did not violate Plaintiff’s rights or clearly established law. Accordingly, Sheriff Todd is entitled
to qualified immunity for this action. Cf. Coggins, 776 F.3d at 114 (finding that qualified
20
immunity did not shield the defendant officer on malicious prosecution claim given evidence
that he made false statements to the district attorney, because such conduct “constitute[s] a
violation of clearly established law, and no objectively reasonable public official could have
thought otherwise”).
B. First Amendment Retaliation
To prevail on a First Amendment retaliation claim, a plaintiff must show: 1) that he has
an interest protected by the First Amendment; 2) that the defendant’s actions were motivated or
substantially caused by the plaintiff’s exercise of that right; and 3) that the defendant’s actions
effectively chilled the exercise of his First Amendment right or caused some other type of harm.
See Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004); Curley v. Village of Suffern, 268 F.3d
65, 73 (2d Cir. 2001).
As previously noted, Plaintiff could have a potential First Amendment retaliation claim
based on the theory that, after he spoke out and verbally challenged Deputy Darling at the time
of the arrest, Deputy Darling retaliated by initiating the prosecution against Plaintiff for
aggravated unlicensed operation of a motor vehicle, obstruction of governmental administration,
and child endangerment, all without probable cause. 4 (Dkt. No. 155, p. 16). The Court found
that “[a]ny claim that Deputy Darling had a retaliatory motive when he arrested Plaintiff lacks
merit.” (Id.). The Court noted that “the question of whether Deputy Darling had probable cause
to charge plaintiff with endangering the welfare of a child and obstructing governmental
administration cannot be determined on a motion addressed to the second amended complaint.”
(Id.). Further, the Court observed that, based on the pleadings, it was unclear if Deputy Darling
4
The Court dismissed any First Amendment retaliation claim against Sheriff Todd. (Dkt. No.
155, p. 21).
21
at some point “knew or should have known that in fact plaintiff’s license was valid,” which
could support a retaliation claim for initiating and continuing the prosecution for aggravated
unlicensed operation of a motor vehicle. (Id.).
The Defendants argue that Plaintiff’s First Amendment retaliation claim against Deputy
Darling must fail for several reasons including: 1) lack of any evidence of retaliatory causation”;
and 2) the immunity defenses applicable to their actions. (Dkt. No. 209-21, pp. 21–22). The
latter argument is dispositive here. Plaintiff’s First Amendment claim runs up against the same
immunity defenses as his claim for malicious prosecution. As discussed above, Deputy Darling
is absolutely immune for his testimony in the judicial proceedings against Plaintiff, which
therefore, cannot support Plaintiff’s First Amendment retaliation claim. Further, Deputy
Darling is entitled to qualified immunity for charging Plaintiff and initiating the prosecution, as
discussed above. Accordingly, Plaintiff’s First Amendment retaliation claim fails for these
same reasons. See also Collins v. City of New York, 295 F. Supp. 3d 350, 368 (S.D.N.Y. 2018)
(“Because the Court has already concluded that the Defendants had arguable probable cause to
arrest the Plaintiffs for disorderly conduct, . . . the Court finds that the Defendants are entitled to
qualified immunity on Plaintiffs’ First Amendment retaliation claim on the basis of that same
arguable probable cause.”).
C. Supervisory Liability Against Sheriff Todd
As the Court previously stated, Plaintiff pled a federal claim for supervisory liability
against Sheriff Todd, based on his alleged failure to remedy an ongoing violation of Plaintiff’s
constitutional rights, specifically Deputy Darling’s allegedly malicious and retaliatory
prosecution of Plaintiff. (Dkt. No. 155, pp. 20–21). Under Section 1983, “a supervisor may not
be held liable merely because his subordinate committed a constitutional tort.” Poe v. Leonard,
22
282 F.3d 123, 140 (2d Cir. 2002). As relevant here, Sheriff Todd may be liable as supervisor to
Deputy Darling if Plaintiff can show that Sherriff Todd, “after being informed of the violation
through a report or appeal, failed to remedy the wrong.” Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995).
Plaintiff’s theory appears to be as follows: 1) Deputy Darling initiated the prosecution on
November 22, 2009; 2) Sherriff Todd met with Plaintiff on November 24, 2009 and learned that
the prosecution was unconstitutional; and 3) Sheriff Todd did nothing to remedy the violation
thereafter. (Dkt. No. 157, pp. 28–32). The Defendants argue that Plaintiff’s claim fails for
several reasons, including that Deputy Darling did not engage in unconstitutional conduct, and
that Sheriff Todd is entitled to qualified immunity “because there was at least arguable probable
cause as to all of the charges.” (Dkt. No. 209-21, p. 18).
Once again, the above qualified immunity analysis dictates dismissal of Plaintiff’s claim.
The record shows that Sheriff Todd met with Plaintiff on November 24, 2009, at which time
Plaintiff discussed his November 22, 2009 arrest. (Dkt. No. 209-11, pp. 16–17; Dkt. No. 20912). Although Plaintiff offered his version of events, he also made several important
admissions: 1) not having an inspection sticker; 2) not having a letter saying his license
suspension was lifted; 3) holding his child between himself and the officer; and 4) refusing to
get out of the van when instructed by the officer. (Dkt. No. 209-12). These admissions are
consistent with Deputy Darling’s testimony as to the factual basis for arresting and charging
Plaintiff. (See Dkt. No. 209-3, pp. 7–17). Moreover, even though Plaintiff tried to justify his
actions and put them in context, these admissions are consistent with Plaintiff’s own testimony.
(Dkt. No. 209-4, pp. 15–18).
23
Based on the undisputed facts, there was at least arguable probable cause for Deputy
Darling to initiate prosecution on the charges for aggravated unlicensed operation of a motor
vehicle, endangering the welfare of a child, and obstruction of governmental administration, and
the November 24, 2009 meeting did not suggest otherwise. Therefore, it was objectively
reasonable for Sheriff Todd to believe that Plaintiff did not suffer a constitutional violation that
needed remedying. Accordingly, Sheriff Todd is entitled to qualified immunity on Plaintiff’s
supervisory liability claim. See also Levy v. City of New York, 935 F. Supp. 2d 575, 593
(E.D.N.Y. 2013) (“The Court concludes Sgt. Reed is entitled to qualified immunity on
Plaintiff’s supervisory liability claim for substantially the same reasons he is entitled to qualified
immunity on the false arrest and malicious prosecution claims.”).
D. Due Process Claim
Plaintiff alleges that Commissioner Swarts and the John Doe Defendants (apparently
unknown employees of the DMV) violated his rights to procedural and substantive due process
under the Constitution by failing to lift Plaintiff’s license suspension, allowing it to remain in
effect for eight months, and reporting his license as suspended to the police during that time,
when it was not. (Dkt. No. 157, pp. 17–23). Plaintiff also alleges that Commissioner Swarts
and the John Does are subject to supervisory liability because they were aware of the license
issue and failed to remedy it. (Id., pp. 23–24). Further, Plaintiff alleges that they exhibited
deliberate indifference and their actions are the policy, custom, and practice of the DMV. (Id.).
In general, a procedural due process violation under the Fourteenth Amendment occurs
when the government deprives a person of a protected life, liberty, or property interest without
first providing notice and opportunity to be heard. Spinelli v. City of New York, 579 F.3d 160,
168 (2d Cir. 2009) (citing Sanitation and Recycling Indus., Inc. v. City of New York, 107 F.3d
24
985, 995 (2d Cir. 1997)). On the other hand, substantive due process “protects against
government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense,
but not against government action that is ‘incorrect or ill-advised.’” Kaluczky v. City of White
Plains, 57 F.3d 202, 211 (1995) (quoting Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)).
Commissioner Swarts argues that “the record is devoid of any facts that support personal
involvement of former Commissioner Swarts in any constitutional violations.” (Dkt. No. 201, p.
2). In response, Plaintiff states that Commissioner Swarts “did either directly or indirectly
violate Plaintiffs constitutional rights by his actions/or lack of actions. Defendant, Swarts, has
personal knowledge of, and was in direct supervisory command of the DMV personnel, and the
policies and procedures utilized by the employees of the DMV[.]” (Dkt. No. 208).
Personal involvement of an individual defendant “in alleged constitutional deprivations
is a prerequisite to an award of damages under § 1983.” Provost v. City of Newburgh, 262 F.3d
146, 154 (2d Cir. 2001) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Indeed, “a
defendant in a § 1983 action may not be held liable for damages for constitutional violations
merely because he held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996). “Because vicarious liability is inapplicable to . . . § 1983 suits,” Plaintiff must raise a
genuine dispute as to whether “each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir.
2016), as amended (Feb. 24, 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009))
(emphasis added).
Here, Plaintiff has not adduced any evidence to show that Commissioner Swarts directly
participated in the alleged failure to lift Plaintiff’s license suspension. In Commissioner
Swarts’s sworn responses to Plaintiff interrogatories, he stated that he did not possess any
25
meaningful information regarding the suspension of Plaintiff’s license, the continuation of that
suspension, or the specifics of the incident forming the basis of this action. (Dkt. No. 195-1).
Plaintiff’s conclusory assertions, unsupported by any evidence, are not enough to raise an issue
of fact as to Commissioner Swarts’s personal involvement on a direct participation theory. 5
Nor has Plaintiff adduced any evidence to show personal involvement of Commissioner
Swarts under any of the other methods recognized by the Second Circuit. Besides direct
participation, Plaintiff could show that: 1) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong; 2) the defendant created a policy or
custom under which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom; 3) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts; or 4) the defendant exhibited deliberate indifference to the rights
of the plaintiff by failing to act on information indicating that unconstitutional acts were
occurring. See Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016) (citing Colon, 58 F.3d at
873).
Plaintiff appears to allege most of these theories, (Dkt. No. 157, pp. 13–24), but there is
simply no evidence in the record to support them. For example, there is no evidence that
Commissioner Swarts was made aware of Plaintiff’s license suspension and failed to remedy it.
Similarly, there is no evidence that he failed to act on information that unconstitutional acts
were occurring. Moreover, there is no evidence as to who at the DMV failed to update the
5
Plaintiff objects that he was not afforded the opportunity to take the deposition of
Commissioner Swarts, but United States Magistrate Judge David E. Peebles declined that
request because there was no evidence that Commissioner Swarts had relevant information.
(Dkt. No. 199, p. 7).
26
database, much less that Commissioner Swarts supervised that person. 6 Plaintiff repeatedly
alleges that the DMV (led by Commissioner Swarts) delayed in lifting license suspensions,
which amounted to an unconstitutional policy, custom, and practice, (see Dkt. No. 157, ¶ 147),
but he has not adduced any supporting evidence. Plaintiff’s conclusory assertions, while enough
to state a claim, are not enough to survive summary judgment. See Kia P. v. McIntyre, 235 F.3d
749, 763 (2d Cir. 2000) (“A plaintiff may not survive a properly asserted motion for summary
judgment on the basis of conclusory allegations alone.”); Shariff v. Poole, 689 F. Supp. 2d 470,
476 (W.D.N.Y. 2010) (“[T]he pro se plaintiff must still establish the existence of genuine issues
of material fact to survive a motion for summary judgment; the pro se party’s ‘bald assertion,’
when unsupported by evidence, is insufficient.”).
Likewise, to the extent Plaintiff alleges a claim pursuant to Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978), that claim must fail for the same reasons. Plaintiff’s theory appears
to be that Commissioner Swarts, acting as official policymaker for the DMV, created the
policy/practice whereby the DMV did not update their database, or ignored that policy/practice.
(Dkt. No. 157, ¶ 94). However, once again, Plaintiff has not adduced any evidence whatsoever
that this policy/practice existed, much less that Commissioner Swarts created or ignored it. For
example, there is no evidence of an explicit policy or practice regarding DMV database updates.
Nor is there evidence of a pattern of similar delays in clearing license suspensions from the
DMV database, which might suggest a policy or practice. Rather, Plaintiff has alleged a single
incident involving his license, and he then jumps to the conclusion that it was caused by a policy
6
Although Plaintiff alleges that unknown John/Jane Doe Defendants at the DMV failed to lift
his suspension, he has not identified these individuals or shown evidence of their involvement in
infringing activity, and with discovery now closed, any claims against them must be dismissed.
See Blake v. Race, 487 F. Supp. 2d 187, 192 n.1 (E.D.N.Y. 2007) (citing cases).
27
or practice at the DMV. As Defendants note, “Plaintiff makes only conclusory and speculative
allegations, without offering any evidence that any of the named defendants actually created a
policy or custom under which an unconstitutional practice occurred.” (Dkt. No. 201-2, p. 6).
Simply put, these allegations are not enough to sustain a Monell claim on summary judgment.
See Nardoni v. City of New York, 331 F. Supp. 3d 116, 119 (S.D.N.Y. 2018) (granting summary
judgment on Monell claim because “Plaintiff points to no evidence in the record of a policy or
custom by the City of New York”); Castro v. County of Nassau, 739 F. Supp. 2d 153, 172
(E.D.N.Y. 2010) (finding that “conclusory allegation does not allow plaintiff’s Monell claim to
survive summary judgment”).
E. State Law Claims
Finally, having found that all of Plaintiff’s federal claims are subject to summary
judgment, the Court declines to exercise jurisdiction over Plaintiff’s remaining state law claims,
including any claims against Oswego County for vicarious liability under New York State law.
See 28 U.S.C. § 1367(c)(3) (providing that a district court “may decline to exercise
supplemental jurisdiction over [pendent state law claims] if . . . the district court has dismissed
all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44,
53 (2d Cir. 1986) (holding that “federal courts, absent exceptional circumstances, should abstain
from exercising pendent jurisdiction when federal claims in a case can be disposed of by
28
summary judgment”) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)).
Accordingly, Plaintiff’s state law claims against Defendants are dismissed.
V.
CONCLUSION
For these reasons, it is
ORDERED that Defendant Swarts’s motion for summary judgment (Dkt. No. 201) is
GRANTED; and it is further
ORDERED that the Oswego County Defendants’ motion for summary judgment (Dkt.
No. 209) is GRANTED; and it is further
ORDERED that Defendants’ motion to strike is DENIED as moot; and it is further
ORDERED that Plaintiff’s Second Amended Complaint (Dkt. No. 157) is DISMISSED
with prejudice; and it is
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to
the parties in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date: March 28, 2019
Syracuse, New York
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