Bardo et al v. City of Little Falls, New York et al

Filing 34

MEMORANDUM-DECISION and ORDER - That defendants' 21 Motion for Summary Judgment is GRANTED. That plaintiffs' complaint (Dkt. No. 1, Attach. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 1/5/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAVID BARDO et al.,
Plaintiffs,

6:15-cv-348
(GLS/ATB)

v.
CITY OF LITTLE FALLS, NEW
YORK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Office of Anthony J. LaFache
288 Genesee Street, Suite 2
Utica, NY 13502
FOR THE DEFENDANTS:
Carter, Conboy Law Firm
20 Corporate Woods Boulevard
Albany, NY 12211
Gary L. Sharpe
Senior District Judge

ANTHONY J. LAFACHE, ESQ.

MICHAEL J. MURPHY, ESQ.
BRIENNA L. CHRISTIANO, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs David Bardo and Shirley Bardo commenced this action
against the City of Little Falls, New York and its police department, alleging
violations of their Constitutional rights. (Compl., Dkt. No. 1, Attach. 1.)
Pending is defendants’ motion for summary judgment. (Dkt. No. 21.) For
the following reasons, defendants’ motion is granted.
II. Background
A.

Facts1
Plaintiffs are a married couple residing at 259 Flint Avenue, Little

Falls, New York. (Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No.
21, Attach. 15.) On March 20, 2014, at around 10:30 or 11:00 A.M.,
plaintiffs left their home to pick up their son, Eric, at his residence in
Herkimer, New York. (Id. ¶¶ 3-4, 8, 10.) At Eric’s request, plaintiffs drove
him to the parking lot of BJ’s Wholesale Club in North Utica, New York,

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Unless otherwise noted, the facts are undisputed. The court deems undisputed the
properly-supported facts set forth by defendants that plaintiffs did not specifically controvert,
see N.D.N.Y. L.R. 7.1(a)(3), and takes note of the defendants’ arguments regarding the
inadequacies of plaintiffs’ response to defendants’ statement of material facts, (Dkt. No. 32 at
9-10).

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where he “informed [plaintiffs] that he ‘had to see somebody.’” (Id. ¶¶ 1112.) Plaintiffs remained in their car while Eric got out, and about ten
minutes later he returned. (Id. ¶¶ 13-14.) Eric stated “‘let’s go’” and then
plaintiffs left and dropped him off at his residence. (Id. ¶¶ 16-17.)
Later that day at around 12:04 P.M., the Oneida County 911 services
put out a “be on the lookout (‘BOLO’) for a red 2013 Chrysler 4DSD,
bearing New York registration number CVG4104.” (Id. ¶ 19.) The car,
owned by Shirley Bardo and registered to her address at 259 Flint Avenue,
was reportedly involved in a robbery at BJ’s Wholesale Club in North Utica.
(Id. ¶¶ 1, 6-7, 21, 23.) The suspect reportedly held a knife to a victim’s
neck and took money. (Id. ¶ 21.) Two officers of the City of Little Falls
Police Department checked 259 Flint Avenue as soon as the BOLO came
out. (Id. ¶¶ 22, 24.) At first the car was not there, but an officer drove
past periodically and spotted it in the driveway at about 1:59 P.M. (Id.
¶¶ 25-26.)
Two other officers joined that officer at the scene. (Id. ¶¶ 27-29.)
One officer “posted himself on the ground in front of the porch with a patrol
rifle,” while another officer “went to a location that allowed him to observe
the rear of the residence.” (Id. ¶ 28.) The third officer knocked on the
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door, and David Bardo answered. (Id. ¶ 29.) Plaintiffs contend that David
was “forcibly and immediately handcuffed and, thereafter, forcibly placed in
a chair inside the residence.” (Pls.’ SMF ¶ 30, Dkt. No. 30.) Defendants
allege that the officer asked him “if his name was David Bardo and if he
was at the BJ’s Wholesale Club in North Utica that morning,” and, when
David replied yes, the officer “instructed [him] to come outside and . . .
handcuffed him as a precaution.” (Defs.’ SMF ¶ 30.)2 The parties also
dispute whether David gave the officers permission to enter the residence.
(Id. ¶ 31; Pls.’ SMF ¶ 31.)
The officers entered the residence and searched the second floor.
(Defs.’ SMF ¶¶ 32-34, 37.) Plaintiffs told the officers what happened
earlier that morning regarding picking up their son, driving him to BJ’s
Wholesale Club, and driving him back to his residence. (Id. ¶ 38.) One of
the officers obtained plaintiffs’ son’s address and called the Herkimer
Police Department, believing that he may be the suspect sought. (Id.
¶ 39.) The officer was advised by the Herkimer Police Department that the
victim “did not wish to prosecute,” and he confirmed the same with the

2

Defendants allege that David was later “seated on a chair in the living room.” (Defs.’
SMF ¶ 35.)

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Herkimer County 911 Center. (Id. ¶ 40.) None of the officers knew about
the cancellation of the BOLO until that point. (Id. ¶¶ 44-45.) The
handcuffs on David Bardo “were immediately removed and all officers
cleared the residence.” (Id. ¶ 41.)
B.

Procedural History
The instant action was commenced in this court by removal from

New York Supreme Court on or about March 25, 2015. (Dkt. No. 1.)
Plaintiff’s complaint alleges that “injuries and damages . . . were caused
solely by reason of the recklessness, negligence[,] and carelessness of the
[d]efendants . . . in that said [d]efendants . . . recklessly, carelessly[,] and
negligently entered [p]laintiffs’ residence and violated their constitutional
and other legal rights by entering said residence without permission and
without probable cause or reason[.]” (Compl. ¶ 4.) Defendants thereafter
filed the pending motion for summary judgment, (Dkt. No. 21), which
plaintiffs opposed, (Dkt. No. 27).
III. Standard of Review
The standard of review pursuant to Federal Rule of Civil Procedure
56 is well established and will not be repeated here. For a full discussion
of that standard, the court refers the parties to its decision in Wagner v.
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Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

City of Little Falls Police Department
As an initial matter, the court grants summary judgment in favor of

the City of Little Falls Police Department. As defendants correctly note,
(Dkt. No. 21, Attach. 16 at 8-9), “[a] police department cannot sue or be
sued because it does not exist separate and apart from the municipality
and does not have its own legal identity.” Reinhart v. City of Schenectady
Police Dep’t, 599 F. Supp. 2d 323, 325 n.4 (N.D.N.Y. 2009) (internal
quotation marks and citation omitted). Moreover, plaintiffs make no
attempt to explain why this is not the case here. (See generally Dkt. No.
27.) “Federal courts may deem a claim abandoned when a party moves
for summary judgment on one ground and the party opposing summary
judgment fails to address the argument in any way,” Sebast v. Mahan, 754
F. Supp. 2d 423, 432 (N.D.N.Y. 2010) (internal quotation marks and
citation omitted); see also N.D.N.Y. L.R. 7.1(b)(3), and the court does so
here.
B.

City of Little Falls
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Summary judgment is also granted for the City of Little Falls.
Plaintiffs’ complaint—far from a model of clarity—alleges a violation of 42
U.S.C. § 1983 and negligence.3
1.

42 U.S.C. § 1983

“A municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.
658, 691 (1978). “In order to state a § 1983 claim against a municipality, a
litigant must allege that the municipality implemented and adopted a ‘policy
statement, ordinance, regulation, or decision’ or established or acquiesced
in a custom that caused the unconstitutional activity.” Barrett v. Harwood,
189 F.3d 297, 303 (2d Cir. 1999) (quoting Monell, 436 U.S. at 690).
Here, plaintiffs have utterly failed to even allege a policy or custom,
let alone marshal facts sufficient to defeat summary judgment.4 Plaintiffs’
argument that they “are not alleging a violation of any specific written policy
3

Defendants construed plaintiffs’ claims as such in their motion for summary judgment,
and plaintiffs did not attempt to articulate any different or additional claims in their opposition.
(Dkt. No. 21, Attach. 16 at 6, 12; Dkt. No. 27.) If plaintiffs had different or additional claims,
they should have stated as much. Because plaintiffs are represented by counsel, the court
should not be required to guess what they are saying. See Drakakis v. ABM Janitorial
Servs.-Ne., Inc., No. 09 Civ.1884, 2010 WL 972398, at *2 (S.D.N.Y. Mar. 17, 2010).
4

Because defendants satisfied their burden of showing that there is no genuine dispute
as to any material fact and that they are entitled to judgment as a matter of law, plaintiffs must
offer specific evidence showing that a genuine issue of material fact warrants a trial.
See Wagner, 827 F. Supp. 2d at 92.

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of the [City of] Little Falls . . . but are alleging basically what the founding
fathers of this country had adopted in the U.S. Constitution and further
memorialized in statutory form in most states,” (Dkt. No. 27 at 5), is at best
utterly devoid of merit.
It is true that a § 1983 plaintiff need not show the existence of a
written policy and may rely on an unwritten custom that causes
unconstitutional activity. See Monell, 436 U.S. at 691. But plaintiff’s
argument in this regard—“during the depositions of the officers, each
attempted to justify his actions by using such phrases as ‘standard
operating procedure[,]’[] ‘customary[,]’[] and ‘exigent circumstances[,]’[]
clearly referring to the customs and standards established and utilized by
the [City of] Little Falls . . . in handling situations similar to the Bardo
matter”—is conclusory and meritless. (Dkt. No. 27 at 6.) Like the vast
majority of plaintiff’s opposition, this argument is supported by zero
citations to the factual record. (See generally id.) Indeed, what those
customs and standards are, how they relate to any unconstitutional
activity, and anything about any situations similar to this matter are left
unexplained entirely.
Furthermore, although it is true that “‘municipal liability may be
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imposed for a single decision by municipal policymakers,’” there is no such
basis here. Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011) (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)). The sole hint of
this line of argument by plaintiffs is that “[t]he Chief of Police was involved
in the decision-making which led to the unlawful intrusion,” without any
factual support or elaboration. (Dkt. No. 27 at 6.)5 “Statements that are
devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Bickerstaff v.
Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
Plaintiffs also make some allegations about training, seemingly in an
attempt to support municipal liability on the basis of a failure to train. (Dkt.
No. 27 at 2, 3, 6.) “Only where a municipality’s failure to train its
employees in a relevant respect evidences a ‘deliberate indifference’ to the
rights of its inhabitants can such a shortcoming be properly thought of as a
[municipal] ‘policy or custom’ that is actionable under § 1983.” City of

5

In a separate section of their opposition, plaintiffs state that “[i]t is interesting to note
that Officer Zink . . . indicated that he attended a meeting with Chief Masi, Assistant Chief
Servadio and, upon information and belief, Officer Simonelli, prior to the illegal entry into
[plaintiffs’] residence but subsequent to the termination of the BOLO.” (Dkt. No. 27 at 2.)
Even if true, this is a bald assertion that is completely unsupported by evidence, which does
not create a genuine dispute as to a material fact. See Carey v. Crescenzi, 923 F.2d 18, 21
(2d Cir. 1991).

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Canton v. Harris, 489 U.S. 378, 389 (1989). Here, not only do plaintiffs fail
to set forth any facts showing a failure to train, they actually assert that the
City of Little Falls’ police officers were trained.6
2.

Negligence

Summary judgment is also granted for the City of Little Falls as to
plaintiffs’ negligence claim. In their motion for summary judgment,
defendants argued why plaintiffs’ negligence claim should fail. (Dkt. No.
21, Attach. 16 at 12.) Plaintiffs made no attempt to address these
arguments in their opposition. (See generally Dkt. No. 27.) For this
reason and because defendants have met their burden of demonstrating
entitlement to summary judgment, the court deems this claim abandoned.
See Sebast, 754 F. Supp. 2d at 432; see also N.D.N.Y. L.R. 7.1(b)(3).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
21) is GRANTED; and it is further
ORDERED that plaintiffs’ complaint (Dkt. No. 1, Attach. 1) is
6

“Each [officer] indicated that he attended various training schools, including
specifically a Little Falls training school.” (Dkt. No. 27 at 2.) “Each of the officers had received
significant training[.]” (Id. at 6.)

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DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 5, 2018
Albany, New York

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