Sequinot v. City of Utica Police Department

Filing 35

MEMORANDUM-DECISION & ORDER granting in part and denying in part 28 Motion for Summary Judgment; that the motion by defendants dismissing plaintiffs excessive force claim is DENIED; that the alternative motion by defendants dismissing plaintiffs ex cessive force claim on the ground of qualified immunity is DENIED; that the motion by defendants dismissing plaintiffs Fourth Amendment claim against the City of Utica is GRANTED; that the motion by defendants to dismiss plaintiffs remaining claims under the Fifth, Sixth, Eighth and Fourteenth Amendments is GRANTED. Signed by Judge Norman A. Mordue on 3/28/2013. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
MIGUEL SEGUINOT,
Plaintiff,

6:10-CV-1387

vs.

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POLICE OFFICER SABANOVIC DZENAN1
& UTICA POLICE DEPARTMENT & CITY
OF UTICA
Defendants.
________________________________________
APPEARANCES:

OF COUNSEL:

MIGUEL SEGUINOT
Plaintiff, Pro Se

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LAW DEPARTMENT
OFFICE OF THE CORPORATION COUNSEL
1 Kennedy Plaza
Utica, New York 13502

John P. Orilio, Esq.
Asst. Corporation Counsel

Hon. Norman A. Mordue, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
The present case arises from plaintiff’s arrest on August 13, 2008, in the City of Utica,

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New York. Plaintiff sues under 42 U.S.C. § 1983 arguing that the defendant police officer used
excessive force in executing his arrest in violation of the Fourth Amendment to the United States
Constitution. Plaintiff’s amended complaint also asserts a Fourth Amendment claim for
municipal liability on the part of the City of Utica presumably based on Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). Finally, plaintiff alleges in vague terms with no factual averments
violations violations of his Fifth, Sixth and Eighth and Fourteenth Amendments by defendants.
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Defendant Officer Dzenan Sabanovic is misnamed by plaintiff in the complaint as Sabanovic Dzenan.

Defendants move for summary judgment dismissing the complaint.
II.

FACTUAL AND PROCEDURAL BACKGROUND
According to defendants2 the relevant facts occurred as follows: On August 23, 2008, at

approximately 9:00 p.m., plaintiff was driving east on South Street in the City of Utica, New
York. He was talking on his cell phone and turned left onto Mohawk Street. Defendants contend
that when he made the left-hand turn onto Mohawk Street, plaintiff passed through a red light.
Based on his violation of two traffic laws, defendant Sabanovic, a City of Utica Police Officer,
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executed a traffic stop and pulled plaintiff’s vehicle over. Defendants assert that Sabanovic then
exited his vehicle. Plaintiff identified himself to Sabanovic as “Miguel Seguinot” and provided
Sabanovic with a New York State driver’s license. Sabanovic returned to his vehicle to run a
driver’s check on plaintiff’s license.
Defendants assert that while Sabanovic was running the driver’s check, plaintiff got out of
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his vehicle and started walking toward Sabanovic’s patrol vehicle. Sabanovic immediately
advised plaintiff to return to his vehicle. Defendants assert that plaintiff refused to do so and said
Sabanovic had to turn off his spotlight because it was bothering him. The second time Sabanovic
asked plaintiff to return to his vehicle, he complied. Upon returning to his patrol car and
completing the driver’s check, Sabanovic learned that plaintiff had a suspended license. He then

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returned to plaintiff’s vehicle and advised him to step outside his vehicle. Once he had exited his
vehicle, Sabanovic told plaintiff that due to his license being suspended, he would have to come
to the police station and be issued several tickets. Upon hearing this, defendants assert that
plaintiff became upset and stated “Why can’t you just give me the fucking tickets here?” Due to

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The Court notes that there is no evidence from Officer Sabanovic in proper evidentiary form. To wit, his police
report is not sworn to under penalty of perjury and he did not submit an affidavit attesting to the truth of the
matters set forth in his report.

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his behavior, Sabanovic contact police headquarters and requested the assistant of another patrol
vehicle to respond and assist him. Sabanovic asked plaintiff a second time to turn around and
place his hands behind his back and that he was under arrest for driving with a suspended license.
Plaintiff complied and Sabanovic took his handcuffs and put them in his right hand. He had his
left hand on plaintiff’s back.
As he placed one handcuff on plaintiff’s right wrist, defendants’ assert plaintiff pushed off
against the vehicle causing Sabanovic unwanted contact. Plaintiff broke away from the officer
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and started “clinching his fists and raising them up in the air as if he was going to fight”
Sabanovic. Sabanovic advised plaintiff that he was going to be pepper sprayed if he did not
comply. Defendants assert that plaintiff replied “Fuck you mother fucker I will fucking kill you.”
Following this remark, Sabanovic started walking toward plaintiff and administered one onesecond burst of pepper spray. As he did so, the wind blew some of the pepper spray into
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Sabanovic’s face. After being pepper sprayed, plaintiff started running east on Rutger Street.
Sabanovic advised police headquarters that he was involved in a foot chase. As he ran after
plaintiff, Sabanovic ran into the pepper spray that was still in the air. As Sabanovic pursued
plaintiff in the back parking lot of the Matt funeral Home, plaintiff tripped and fell on his chest
and face. He immediately got back up and continued running. Plaintiff ran through the backyard

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of the residence at 708 Rutger Street, attempted to jump the fence and was unsuccessful.
At this point, Sabanovic was able to grab plaintiff and take him to the ground. Plaintiff
landed on his chest and face in the driveway of 708 Rutger Street and Sabanovic landed on top of
him. When plaintiff attempted to get up, Sabanovic pressed on his back with his knee to prevent
him from getting up. Defendants assert that Sabanovic was in pain from the pepper spray and his
vision was impaired and thus felt it was necessary to subdue plaintiff until back up arrived. Each

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time plaintiff attempted to get up, defendants assert that Sabanovic prevented him from doing so.
Sabanovic had not yet had an opportunity to check plaintiff for weapons so he pulled his hands
out from underneath his body and handcuffed with some force because plaintiff resisted.
After he was handcuffed, a back up unit arrived and Sabanovic assisted plaintiff in sitting
up. He observed swelling and lacerations under plaintiffs; left eye. Plaintiff was charged with
use of a cell phone, passing a steady red light, failure to cover loose cargo, aggravated unlicensed
operation of a vehicle, harassment and resisting arrest.
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In reviewing plaintiff’s deposition transcript, the Court concludes that plaintiff views the
facts differently. In the first instance, there is nothing in the deposition transcript about plaintiff
getting out of his car prior to being asked to do so by the officer. Plaintiff also testified that he
was unaware that his license was suspended. Plaintiff testified that Sabanovic told him he was
going to arrest him for having a suspended license and that he was going to have to be taken to
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the station. Plaintiff stated:
Then he was going to - he put the handcuffs on me. And then
I turned and stepped back and took out his mace. And then he went
to mace me. And what happened was the mace once he - it hit him in
the face. And when it hit the policeman in the face I ran because I was
on parole. And when I ran he ran after me.

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And I went into a yard. And I - I was tired and I said it’s okay.
And that is when he threw me on the ground. And when he threw me
on the ground that is when he kicked me in the rib. And that is when
I lost all of my breath. And I hit the ground and he was kicking me.
And I don’t remember anything more after that.
And then when I woke up I was at the precinct. And that is
when the captain came and I said I wanted to go to the hospital. And
when I went to the hospital I had two chipped teeth. And I had two and I had two or three fractured ribs. And my eye was really swollen
and red. And they held me there for a while and they took me to OCJ.
Plaintiff testified during his deposition that he had photographs of himself which proved
that he had suffered the injuries and medical records as well. Defendants assert that they made
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discovery demands for both the photographs and the medical records and did not receive them.
The Court notes that the docket does not reflect that defendants sought Court intervention for
plaintiff’s failure to produce these documents by way of a motion to compel discovery or a
motion to preclude or even a discovery conference with the assigned Magistrate Judge.
III.

DISCUSSION

A.

Summary Judgment Standard
Standard of Review

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A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir.1994) (citations omitted). When analyzing a summary judgment motion, the
court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Id. at
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36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56 (c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

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nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of NewYork, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
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motion for summary judgment “would derogate the truth-finding functions of the judicial process
by substituting convenience for facts”).
In reviewing a pro se case, the court “must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.” ’ Govan v. Campbell, 289
F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Haines v. Kerner, 303 U.S. 519, 520 (1972)) (other
citations omitted). “Indeed, the Second Circuit has stated that ‘[i]mplicit in the right to
self-representation is an obligation on the part of the court to make reasonable allowances to
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protect pro se litigants from inadvertent forfeiture of important rights because of their lack of
legal training.” ’ Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). This does not
mean, however, that a pro se litigant is excused from following the procedural requirements of
summary judgment. See id. (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484,
*2 (S.D.N.Y. May 16, 2001)). Specifically, “a pro se party's ‘bald assertion,’ completely
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unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Lee v.
Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d
Cir.1991)).
Plaintiff was properly served with defendants’ motion papers and the required notification
of the consequences of failure to respond to a summary judgment motion on April 30, 2012.

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Plaintiff did not oppose the present motion or request additional time to present papers in
opposition. Rather, on December 13, 2012, plaintiff wrote to the Court and stated the following:
I had a brief conversation with the secretary Sue at the federal building
regarding the status of my case above, and she had informed me their
[sic] was a notice sent out for summary judgment response. I had
received a printout from her regarding the details of the case. I have
a learning disability which entails reading and writing. The last thing
that I recall was I was going to receive a letter. I did not understand
that I would have to respond! This is the example to why I would
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need an attorney. I have a friend who has helped me with this
paperwork. She is not a lawer. [sic]
Plaintiff does not mention having received notice of defendants’ motion papers. Perhaps he was
conflating the “printout” and “details of the case” with the defendants’ motion papers. In any
event, he does not deny receiving defendants’ motion papers and more importantly, the Court’s
docket does not reflect that he has moved or changed his address where he was served with the
motion papers as well as the notice of the consequences of failure to respond to a motion for
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summary judgment.
As a further matter, plaintiff did not actually request additional time to respond to
defendants’ motion in this correspondence submitted nearly eight months after being served with
the motion papers. Indeed, it is unclear what relief, if any plaintiff is requesting in his
correspondence. He simply informs the Court that he was unaware that a response was necessary.

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Insofar as plaintiff’s self-serving and conclusory allegation that he has a reading disability, he has
submitted no medical evidence in support of this claim and even if it is true, the Court concludes
that plaintiff has an obligation to insure someone assists him with reading his legal mail. Thus,
the Court does not find that plaintiff’s pro se status or his alleged disability excuses his failure to
have filed opposing papers in the present matter. Triestman v. Fed. Bureau of Prisons, 470 F.3d

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471, 477 (2d Cir. 2006) (“The right of self-representation is not a license ... not to comply with
relevant rules of procedural and substantive law.”); LoSacco v. City of Middletown 71 F.3d 88, 92
(2d Cir.1995) ( “[P]ro se status does not exempt a party from compliance with relevant rules of
procedural and substantive law.”) [internal quotation marks and citations omitted].
B.

Substantive Legal Standard
Plaintiff bases his federal claims on 42 U.S.C. § 1983, which reads in part:

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Every person who, under color of any statute, ordinance, regulation,
custom or usage of any State ..., subjects or causes to be subjected, any
citizen of the United States ... to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action.
Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for
vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989)
(quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, (1979). Plaintiff claims that defendant
Dznenan violated his constitutional rights because he used excessive force in executing his arrest.
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C.

Excessive Force
Defendants move to dismiss plaintiff’s excessive use of force claim on the ground that any

force used against plaintiff in executing his arrest was necessary and appropriate under 42 U.S.C.
§ 1983.

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Determining whether the force used to effect a particular seizure is
“reasonable” under the Fourth Amendment requires a careful
balancing of “ ‘the nature and quality of the intrusion on the
individual's Fourth Amendment interests' ” against the countervailing
governmental interests at stake. . . . [T]he right to make an arrest or
investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it. Because
“[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” however, its
proper application requires careful attention to the facts and
circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396 (internal citations omitted). Courts must view excessive force claims
under the long-established principle that the reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). “Not every push or shove, even if it

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may later seem unnecessary in the peace of a judge’s chambers” is actionable under the Fourth
Amendment. Johnson v. Glick, 481 F.2d 1028, 1033 (1973) (overruled on other grounds, 490
U.S. 386 (1989). Analysis of reasonableness of force used “must embody . . . the fact that police
officers are often forced to make split-second judgments - in circumstances that are tense,
uncertain, and rapidly evolving - about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 397.
It is apparent from only the most cursory review of the record that the Court cannot
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dismiss plaintiff’s complaint presently. The most glaring problem is that defendant Sabanovic’s
version of the events that occurred on August 23, 2008, is not in evidentiary form since his police
report is not sworn to under penalty of perjury and he did not submit a deposition or an affidavit
in this matter. The Court cannot rely on defendants’ 7.1 Statement which incorporates
Sabanovic’s report as dispositive of the events as they unfolded that evening. In contrast, the
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Court has the sworn testimony of plaintiff who asserts that while he did attempt to flee, evade
capture and resist arrest, he then offered to surrender peacefully at which time he was thrown to
the ground and kicked without justification. There are numerous material factual issues that are
disputed in connection with this claim including the nature of plaintiff’s actions when Officer
Sabanovic attempted to place him under arrest, what level of force was necessary to restrain him

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and whether he was thrown to the ground or kicked without justification. These material
questions are at the heart of whether defendant Sabanovic used excessive force in placing plaintiff
under arrest. Crediting plaintiff’s allegations as set forth in his deposition transcript, a reasonable
jury could find that plaintiff has met his burden of establishing a Fourth Amendment violation.
Thus, summary judgment is inappropriate on plaintiff’s excessive force claim.
D.

Qualified Immunity
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Defendants assert they are entitled, in the alternative, to summary judgment on the ground
of qualified immunity. Indeed, the Supreme Court has long held that denying summary judgment
any time a material issue of fact remains on an excessive force claim could undermine the goal of
qualified immunity which is to “avoid excessive disruption of government and permit the
resolution of many insubstantial claims on summary judgment.” See Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). In Saucier v. Katz, the Court reiterated its instruction concerning the
appropriate time to consider a defense of qualified immunity:
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In a suit against an officer for an alleged violation of a constitutional
right, the requisites of a qualified immunity defense must be
considered in proper sequence. Where the defendant seeks qualified
immunity, a ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial are avoided where
the defense is dispositive. Qualified immunity is “an entitlement not
to stand trial or face the other burdens of litigation.” The privilege is
“an immunity from suit rather than a mere defense to liability; and like
an absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial.” As a result, “we repeatedly have stressed the
importance of resolving immunity questions at the earliest possible
stage in litigation.”
533 U.S. 194, 200-01 (2001) (internal citations omitted).In rejecting the argument that the
reasonableness standard for Fourth Amendment claims and qualified immunity is identical, the
Supreme Court acknowledged there was some “surface appeal” to the contention that it would be

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“inconsistent to conclude that an officer who acted unreasonably under the constitutional standard
nevertheless was entitled to immunity because he ‘reasonably’ acted unreasonably.” Saucier, 533
U.S. at 203 (citing Anderson v. Creighton, 483 U.S. 635, 643 (1987)). This “superficial
similarity,” however, is inapposite given the “justifications for applying the doctrine in an area
where officers perform their duties with considerable uncertainty” as to whether their actions
comport with the Fourth Amendment. Id. Because analysis of the defense of qualified immunity

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is not “merely duplicative” of a court’s determination of an excessive force claim, early and
particularized resolution of the former is required. Id. at 203.
Thus, when presented with a claim of qualified immunity, a court must consider as an
initial question whether “[t]aken in the light most favorable to the party asserting the injury,” the
facts “show the officer’s conduct violated a constitutional right?” Id. at 201.3

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If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries
concerning qualified immunity. On the other hand, if a violation could
be made out on a favorable view of the parties' submissions, the next,
sequential step is to ask whether the right was clearly established. This
inquiry, it is vital to note, must be undertaken in light of the specific
context of the case, not as a broad general proposition; and it too
serves to advance understanding of the law and to allow officers to
avoid the burden of trial if qualified immunity is applicable.
Id. The Court has already determined, as set forth above, that assuming the truth of plaintiff’s
evidence and allegations, a jury could find in his favor on the question of excessive force.

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Consequently, the next step is to consider whether the law clearly established that defendants’
conduct was unlawful under the circumstances of the present case.
While there is no doubt that the use of force is contrary to the Fourth Amendment if it is
excessive under objective standards of reasonableness, the Supreme Court made clear in Saucier

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The Supreme Court deemed this initial inquiry critical to proper sequential analysis of a qualified immunity
defense:
In the course of determining whether a constitutional right was violated on the premises alleged,
a court might find it necessary to set forth principles which will become the basis for a holding that
a right is clearly established. This is the process for the law's elaboration from case to case, and
it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional
right as the first inquiry. The law might be deprived of this explanation were a court simply to skip
ahead to the question whether the law clearly established that the officer's conduct was unlawful
in the circumstances of the case.
Saucier, 533 U.S. at 201.

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that in the context of a qualified immunity inquiry, “the right the official is alleged to have
violated must have been ‘clearly established’ in a more particularized and hence more relevant
sense.” Id. (quoting Anderson, 483 U.S. at 640). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Id. (citing Wilson v. Layne,
526 U.S. 603, 615 (1999)). “If the law did not put the officer on notice that his conduct would be
clearly unlawful, summary judgment based on qualified immunity is appropriate.” Id. (citing
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Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law”).
As referenced above, excessive force claims are properly analyzed under the Fourth
Amendment's “objective reasonableness standard,” because of the uncertainty and rapidity
inherent in police work. Graham, 490 U.S. at 396. Indeed, Graham sets forth a list of factors
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relevant to the merits of the constitutional excessive force claim which include analysis of the
crime at issue, the threat posed by a suspect and any attempt by the suspect to evade or resist
arrest. See id. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight
back, for instance, the officer would be justified in using more force than in fact was needed. See
id.

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On the other hand, “the concern of the immunity inquiry is to acknowledge that
reasonable mistakes can be made as to the legal constraints on particular police conduct.”
Saucier, 533 U.S. at 205.
It is sometimes difficult for an officer to determine how the relevant
legal doctrine, here excessive force, will apply to the factual situation
the officer confronts. An officer might correctly perceive all of the
relevant facts but have a mistaken understanding as to whether a
particular amount of force is legal in those circumstances. If the
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officer's mistake as to what the law requires is reasonable, however,
the officer is entitled to the immunity defense.
Id. Thus, the distinction between reasonableness as applied to excessive force cases and
reasonableness in the context of qualified immunity is that the former contemplates a mistaken
factual belief while the latter considers a mistake as to the scope of the law. To wit:

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[O]fficers can have reasonable, but mistaken, beliefs as to the facts
establishing the existence of probable cause or exigent circumstances,
for example, and in those situations courts will not hold that they have
violated the Constitution. Yet, even if a court were to hold that the
officer violated the Fourth Amendment by conducting an
unreasonable, warrantless search, Anderson still operates to grant
officers immunity for reasonable mistakes as to the legality of their
actions.
Id. at 206 (emphasis added).
In this case, because the versions of the events which unfolded on August 23, 2008,
offered by plaintiff and defendants are so starkly in contrast, the Court does not possess the facts

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needed to resolve the objective legal question. Indeed, while defendants assert that plaintiff
resisted arrest and threatened officer Sabanovic who feared for his physical safety while
attempting to get physical control of plaintiff, the Court cannot accept these facts since defendant
Sabanovic did not present them in admissible form. Moreover, even if he had, plaintiff does not
deny fleeing from the officer but testified that he gave up the chase and attempted to surrender

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peacefully at which time he was thrown to the ground and kicked numerous times.
In short, this is not a case where the Court has the necessary facts to decide whether the
amount of force used was objectively or legally reasonable because the initial inquiry of whether
force was even necessary has not yet been answered. If the facts are as set forth by defendants it
might be appropriate to find that the officers believed that the amount of force used was necessary
and reasonable even if it violated Fourth Amendment principles. However, if plaintiff’s version
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of the facts is credited, it is hard to conceive of how any police officer could be found to have
reasonably concluded it was necessary to throw plaintiff to the ground or kick him prior to
placing him under arrest or attempting to handcuff him.
Based on the foregoing, The motion by defendants to dismiss plaintiff’s excessive force
claims on the ground of qualified immunity must be denied without prejudice.
D.

Failure to Train and Supervise
Plaintiff raises a second Monell type claim against the City of Utica and its Police

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Department for their alleged failure to train and supervise defendant Sabanovic based on his
violation of plaintiff's constitutional rights. However, plaintiff has merely claimed, but failed to
submit evidence in support of his claim, that the municipal defendants were deficient in their
obligation to train and supervise defendant Sabanovic. Review of the complaint does not reveal
the alleged municipal policy at the heart of plaintiff’s Monell claim. It is only when the
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municipality, through the execution of its policies, actually deprives an individual of his
constitutional rights that it is liable for the injury. See Monell, 436 U.S. at 692. Moreover, it is
necessary that the policy or custom be made by one "whose edicts or acts may be said to fairly
represent official policy." Id. at 694. Municipal liability attaches only where the decision maker
possesses final authority to establish municipal policy with respect to the unlawful action of

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which a plaintiff complains. See Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986). Finally, to
establish municipal liability, the policy must actually cause the violation of constitutional rights;
it must be the moving force behind the violation. See Monell, 436 U.S. at 692. Consequently,
plaintiff’s failure to train and supervise claims must be dismissed.
E.

Remaining Claims
Plaintiff’s amended complaint also asserts claims under the Fifth, Sixth, Eighth and
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Fourteenth Amendments. However, he does not assert any facts in support of these claims other
than stating he was the victim of excessive force. Reading the amended complaint and the record
in the light most favorable to plaintiff, the Court cannot conceive of any due process violations
under the Fifth Amendment that would have inured to plaintiff under circumstances presented
herein. In connection with his Sixth Amendment rights, plaintiff does not assert that he was
denied counsel during the criminal proceedings which followed his arrest. It appears he pled
guilty to resisting arrest. Again, the Court fails to comprehend how defendants’ conduct as
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alleged herein violated plaintiff’s Sixth Amendment Rights. The Eighth Amendment concerns
cruel and unusual punishment in a penal sense and would seem to have no application in this case.
Plaintiff’s Fourteenth Amendment equal protection claim also appears to have to application to
the facts of this case since he does not assert that he was treated differently than any other class of
persons or that defendant Sabanovic acted with a discriminatory purpose. Because these claims
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have no apparent connection to the facts of this case, the Court will dismiss them at this time.
IV.

CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the motion by all defendants for summary judgment (Dkt. #28)

dismissing plaintiff’s amended complaint is DENIED in part and GRANTED in part; and it is
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further
ORDERED that the motion by defendants dismissing plaintiff’s excessive force claim is
DENIED; and it is further
ORDERED that the alternative motion by defendants dismissing plaintiff’s excessive
force claim on the ground of qualified immunity is DENIED;
ORDERED that the motion by defendants dismissing plaintiff’s Fourth Amendment
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claim against the City of Utica is GRANTED; and it is further
ORDERED that the motion by defendants to dismiss plaintiff’s remaining claims under
the Fifth, Sixth, Eighth and Fourteenth Amendments is GRANTED.
IT IS SO ORDERED.
Dated: March 28, 2013
Syracuse, New York

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