West v. Syracuse Police Department et al
Filing
124
DECISION AND ORDER that Defendants' motion for summary judgment (Dkt. No. 117 ) is DENIED. Plaintiff is directed to forward a written settlement demand to defendants no later than October 1, 2021, and the parties are directed to thereaft er engage in meaningful settlement negotiations. The parties are directed to jointly file, on or October 22, 2021, regarding their settlement discussions and if a settlement conference would be beneficial or a jury trial date should be scheduled. Signed by Chief Judge Glenn T. Suddaby on 9/21/2021. (sal )
Case 9:17-cv-00621-GTS-DJS Document 124 Filed 09/21/21 Page 1 of 35
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JESSE D. WEST,
Plaintiff,
v.
9:17-CV-0621
(GTS/DJS)
JOHN HARKNESS, #0304, Police Officer; and
JOHN HARRIMAN, #0463, Police Officer,
Defendants.
___________________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF JARROD W. SMITH
Counsel for Plaintiff
11 South Main Street
P.O. Box 173
Jordan, NY 13080
JARROD W. SMITH, ESQ.
CITY OF SYRACUSE LAW DEPARTMENT
Counsel for Defendants
233 East Washington Street
300 City Hall
Syracuse, NY 13202
PATRICK R. BLOOD, ESQ.
TODD M. LONG, ESQ.
GOLDBERG SEGALLA
Co-Counsel for Defendants
5786 Widewaters Parkway
Syracuse, NY 13214
SHANNON T. O’CONNOR, ESQ.
ALEXANDER J. BLOOD, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by Jesse D. West (“Plaintiff”)
against City of Syracuse police officers John Harkness and John Harriman (“Defendants”), is
Defendants’ motion for summary judgment. (Dkt. No. 59.) For the reasons set forth below,
Defendants’ motion is denied.
Case 9:17-cv-00621-GTS-DJS Document 124 Filed 09/21/21 Page 2 of 35
I.
RELEVANT BACKGROUND
A.
Plaintiff's Amended Complaint
Generally, in his Amended Complaint, Plaintiff asserts a claim of “excessive force” and a
claim of failure to protect in violation of the Fourth Amendment and 42 U.S.C. § 1983. (Dkt.
No. 8 [Pl.’s Am. Compl.].) Specifically, Plaintiff alleges that, on February 24, 2017, while he
was in a police vehicle, Defendants Harkness and Harriman, while conducting a search, pulled
down his jeans and boxer briefs and one of them ran a hand between his buttocks, touching his
“rectum” barehanded. (Id.) Plaintiff additionally alleges that Defendants failed to protect him
from the alleged use of excessive force. (Id. at 5.)
B.
Undisputed Material Facts on Defendants’ Motion for Summary Judgment
Under N.D.N.Y. Local Rule 56.1, a party opposing summary judgment must file a
response to the moving party’s Statement of Material Facts that “shall mirror the movant’s
Statement of Material Facts by admitting and/or denying each of the movant’s assertions in a
short and concise statement, in matching numbered paragraphs,” supported by “a specific
citation to the record where the factual issue arises.” N.D.N.Y. L.R. 56.1(b). This requirement
is not a mere formality; rather “this and other local rules governing summary judgment are
essential tools intended to relieve the district court of the onerous task of hunting through
voluminous records without guidance from the parties.” LaFever v. Clarke, 17-CV-1206, 2021
WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd, J.) (quoting Frantti v. New York, 414 F.
Supp. 3d 257, 284 [N.D.N.Y. 2019] [Hurd, J.]). Indeed, “[a] proper response to a movant’s
statement of material facts streamlines the summary judgment analysis ‘by allocating
responsibility for flagging genuine factual disputes on the participants ostensibly in the best
position to do so: the litigants themselves.’” LaFever, 2021 WL 921688, at *7 (quoting Alke v.
2
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Adams, 16-CV-0845, 2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd, J.]). “The
Court may deem admitted any properly supported facts set forth in the Statement of Material
Facts that the opposing party does not specifically controvert.” See L.R. 56.1(b).
In this case, Plaintiff failed to comply with the Local Rules in that his purported
“response” to Defendants’ Statement of Material Facts does not mirror Defendants’ Statement of
Material Facts and does not admit or deny the asserted facts in matching numbered paragraphs
supported by specific citations in the record. Rather, Plaintiff’s purported response is a
mishmash of legal arguments and citations to various portions of his testimony at depositions
and other evidence, without any reference to the specifically numbered facts asserted by
Defendants. (Dkt. No. 122, Attach. 20.) Furthermore, although the Local Rules permit a
respondent to “set forth any assertions that the opposing party contends are in dispute in a short
and concise Statement of Additional Material Facts in Dispute,” Plaintiff’s statement here is also
insufficient pursuant to those standards. Specifically, many of Plaintiff’s “facts” are legal
arguments with generic citations to exhibits (or no citation at all), while his specific citations to
evidence from the deposition testimony are neither “short and concise” nor in “separately
numbered paragraphs” as required. L.R. 56.1(b). Indeed, Plaintiff’s “response” is nearly
identical to his affidavit also submitted with his opposition to Defendants’ motion. (Compare
Dkt. No. 122 with Dkt. No. 122, Attach. 20.)
The Court has ensured that all of Defendants’ asserted facts are supported by the record
evidence cited in support of them. In addition, the Court has made a reasonable effort to ensure
that Defendants’ asserted facts do not conflict with other record evidence cited in support of
contrary facts asserted by Plaintiff. However, the Court has not sua sponte scoured the
3
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considerable record1 for any and all evidence contradicting those asserted facts, nor does it have
a duty to do so. See Prive v. Johnson, 04-CV-1024, 2010 WL 3338810, at *2 (N.D.N.Y. Aug.
23, 2010) (Suddaby, J.) (noting that, “[b]ased on the volume of record evidence presented in this
case, and the fact that Plaintiff was represented by experienced counsel when he filed his
response to Defendants’ motion, the Court declines to scour the record for evidence of material
questions of fact”); Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (“We
agree with those circuits that have held that Fed. R. Civ. P. 56 does not impose an obligation on
a district court to perform an independent review of the record to find proof of a factual
dispute.”); Monahan v. New York City Dep't of Corr., 214 F.3d 275, 291 (2d Cir.2000) (noting
that the Local Rules require the parties “to clarify the elements of the substantive law which
remain at issue because they turn on contested facts” and the Court “is not required to consider
what the parties fail to point out”) (internal quotation marks and citations omitted).
Indeed, given the failure of Plaintiff (who is represented by counsel) to respond
appropriately to Defendants’ Statement of Material Facts, the Court may and does deem
admitted any asserted facts that Defendants have supported with evidence that are not
specifically controverted. See N.D.N.Y. L.R. 56.1(b); Bryant v. Whitmore, 14-CV-1042, 2016
WL 7188127, at *3 (N.D.N.Y. Nov. 4, 2016) (Dancks, M.J.) (“Where a party has failed to
respond to the movant’s statement of material facts in the manner required by L.R. [56.1], 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.”) reportrecommendation adopted by 2016 WL 7187349 (N.D.N.Y. Dec. 9, 2016) (McAvoy, J.). As a
1
The Court notes that the record on Defendants’ motion is approximately 680 pages in
length. (Dkt. No. 117, Attach. 2-13; Dkt. No. 122, Attach. 1-18.)
4
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result, unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendants in their Statement of Material Facts and deemed admitted by
Plaintiff due to his failure to appropriately respond or cite evidentiary support sufficient to create
a genuine dispute of material fact. (Compare Dkt. No. 117, Attach. 14 [Defs.’ Rule 56.1
Statement] with Dkt. No. 122, Attach. 20.)2
Events Prior to Plaintiff’s Arrest
1.
On February 23, 2017, Syracuse Police Department (“SPD”) Officer Cody Nellis
responded to 217 Aberdeen Terrace in Syracuse, New York, regarding a verbal domestic
incident. Upon arrival, Officer Nellis spoke to S.V., who reported that she has “a full stay away
order” against Plaintiff, her ex-boyfriend.
2.
S.V. explained that Plaintiff had been calling her continuously for the past 24
hours, and she showed Officer Nellis her cell phone, which showed more than 40 unanswered
calls from a landline phone number listed as 1313 Grant Boulevard in Syracuse, New York.
3.
S.V. reported to Officer Nellis that Plaintiff had been physically violent with her
in the past (with numerous physical altercations dating back several years) and that she finally
had had enough of the abuse, so she had ended the relationship approximately a month before.
S.V. additionally reported that, after she had left Plaintiff, he had started using drugs frequently
and had become increasingly hostile towards her.
4.
S.V. advised Officer Nellis that she had answered one of these phone calls from
Plaintiff in an attempt to direct him to stop calling her. She reported that, during the call,
2
Given the flagrant lack of compliance with Local Rule 56.1 in this case, Plaintiff’s
counsel is respectfully reminded that familiarity and compliance with the Local Rules is a
prerequisite to practice in this District. See N.D.N.Y. L.R. 83.1(a)(1) (indicating that, in a
petition for admission to the bar of this Court, the petitioner must state that he or she is familiar
with the Local Rules and “shall further affirm faithful adherence to these Rules and
responsibilities”).
5
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Plaintiff had claimed that he had recently came into possession of a handgun from his cousin and
that he was going to kill her, their child, and the police when they came for him, because he had
“nothing else to live for” and was adamant about “going out with a bang.” S.V. expressed that
she believed Plaintiff was “very unstable” and that his threats were sincere.
5.
Officer Nellis obtained a sworn statement from S.V. regarding Plaintiff and her
desire for prosecution against him.
6.
Officer Nellis learned from S.V. that Plaintiff had been staying with family
members at 1313 Grant Boulevard in Syracuse, New York,
7.
After speaking with S.V., Officer Nellis prepared a warrant application for
Plaintiff’s arrest based on evidence that he had violated a protective order. As a part of this
process, SPD issued notice to the Onondaga County 911 Center to flag any potential calls in
connection with Plaintiff.
SPD’s Response to Report of Suspicious Person with a Weapon
8.
The following day, February 24, 2017, at or around 5:06 PM, Officer Nellis and
multiple other SPD units responded to 1313 Grant Boulevard regarding a call from S.V.
9.
S.V. had reported to 911 that Plaintiff was standing outside 1313 Grant Boulevard
with a gun and threatening to shoot everyone. S.V. had also reported that Plaintiff was on
“molly,” had threatened to come “mess up her van,” and that her friend had seen Plaintiff display
a gun, which he had pointed at that friend.
10.
Around the time Officer Nellis arrived at 1313 Grant Boulevard, he was joined by
SPD Officer Michael Shannon, Sergeant David Hart, and Defendant Harriman. After
establishing a perimeter around the residence, the officers approached the front door and ordered
the occupants to exit.
6
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11.
Three individuals exited the residence, including Plaintiff’s father, who gave the
officers permission to enter the residence.
12.
Officers Nellis and Shannon entered the residence and began clearing rooms. As
Officer Nellis entered the kitchen area, he observed a closed door in the rear of the kitchen.
When he attempted to open the door, it appeared to be held shut from the other side.
13.
Officer Nellis called for assistance and was joined by Officer Shannon and
Sergeant Hart, all three of whom drew their SPD-issued weapons (due to the nature of the call
indicating that a weapon might be involved) and ordered the individual inside to exit with his
hands in the air. When Plaintiff came out from the room, he was placed under arrest,
handcuffed, and escorted outside.
14.
Outside of the residence, as the officers attempted to place Plaintiff into the back
of Defendant Harriman’s patrol vehicle, he began to push or “buck” the officers, and also
attempted to kick Defendant Harriman. Plaintiff was eventually brought to the ground by
officers.
15.
Plaintiff was, in his own words, “struggling to get free” because he was in pain.
16.
By the time Plaintiff was under control, an SPD prisoner transport van had arrived
on scene. The prisoner transfer van is larger than a patrol car and therefore is much easier to
place individuals inside.
17.
Defendants Harkness and Harriman escorted Plaintiff to the back of the prisoner
transport van.
18.
Before Defendants Harkness and Harriman brought him to the transport van,
officers had been unable to thoroughly search Plaintiff beyond a pat-frisk.
Defendants’ Search of Plaintiff
7
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19.
SPD’s operations policy titled “Arrest, Processing & Transporting Prisoners”
(Art. III, Sec. 9.17) requires that “[a]ll persons taken into custody will be thoroughly searched
for weapons, evidence, means of escape, and/or contraband prior to being transported.”
20.
In Defendant Harriman’s and Officer Nellis’ estimation, “[i]t is not uncommon
for suspects to hide weapons (e.g., handguns, knives or sharp objects) or contraband in or near
the waistband of their pants and/or underwear.”
21.
A mere “pat down” or “pat-frisk” search may be unable to detect such items;
thus, before transport, a more thorough search is required, especially where the individual has
exhibited violent behavior and/or is suspected of having weapons.
22.
Before the arrival of the prisoner transport van, Plaintiff had not been searched
thoroughly.
23.
The prisoner transport van is divided roughly in two sections: the front section
for the driver and front seat passenger, and the rear section for the prisoners. The rear (or
prisoner) section is at least ten feet long with two parallel benches running lengthwise. A metal
grate wall separates the driver-and-front passenger section from the prisoner section.
24.
Initially, Plaintiff was positioned sitting at the edge of the rear section of the
prisoner transport van with the doors open.
25.
While still outside the van near the rear doors, Defendant Harriman
communicated that Plaintiff had not been searched thoroughly and that he would need to be
searched again before transport.3
3
In his deposition, Plaintiff testified that he did not hear any officer say they were going to
search him. (Dkt. No. 117, Attach. 2, at 83-84 [Pl.’s Dep.].) However, he does not deny that
Defendant Harriman made the asserted statement, merely that he did not hear it. Such evidence
is insufficient to create a genuine dispute of material fact. See Genger v. Genger, 663 F. App’x
44, 49 n.4 (2d Cir. 2016) (summary order) (noting that a statement that one “ha[d] no
recollection” of a fact “does not constitute a denial”); F.D.I.C. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 205 F.3d 66, 75 (2d Cir. 2000) (“[V]ague denials and memory lapses . . . do not
8
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26.
Upon seeing Defendants coming for him, Plaintiff stated words to the effect of
“That’s not going to happen,” and he “slid” into the prisoner transport van away from the rear
doors and towards the partition between the driver section and the prisoner section.4
27.
Plaintiff leaned himself against the metal wall by the front of the van away from
Defendants.
28.
Accordingly, Defendant Harkness entered the van and began to explain to
Plaintiff that he needed to be searched.
29.
Plaintiff then stood and charged toward Defendant Harkness.5
30.
Defendant Harkness used one of his forearms to deflect Plaintiff and push him
towards the front of the van into a seated position on the bench.
31.
Plaintiff then reached into the rear of his jeans.6
create genuine issues of material fact.”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL
1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (Suddaby, J.) (“On a motion for summary judgment,
denials of fact that are based on a lack of personal knowledge . . . are insufficient to create a
genuine dispute.”).
4
In his deposition, Plaintiff states that he does not recall saying anything to the officers or
expressing any verbal objection, but he does not affirmatively deny that he expressed a verbal
objection. (Dkt. No. 117, Attach. 2, at 84 [Pl.’s Dep.].) As indicated above in note 3 of this
Decision and Order, such a denial of recollection is insufficient to controvert a factual assertion.
Additionally, at his previous examination (pursuant to Section 50-h of the N.Y. General
Municipal Law), Plaintiff testified that, when they sat him at the edge of the transport van, the
officers spoke to him, at which point he stated, “I don’t have nothing,” before he slid into the
wagon. (Dkt. No. 122, Attach. 3, at 54, 58-59 [Pl.’s 50-h Exam.].) As a result, the Court deems
this portion of Defendants’ asserted fact to be admitted and undisputed.
5
Although Plaintiff does not affirm that this occurred, he offers no testimony or evidence
to specifically refute the asserted fact. This asserted fact is therefore deemed admitted.
6
Plaintiff testified at his Section 50-h examination that (1) he never reached toward the
“waistband” of his pants while in the back of the van, and (2) his hands were never near the
waistband of his pants because they were “cuffed behind [his] back.” (Dkt. No. 122, Attach. 3,
at 60 [Pl.’s 50-h Exam.].) However, Defendants have asserted that Plaintiff reached into the rear
of his “jeans,” not the rear of his “waistband.” Moreover, Plaintiff’s explanation for why he
could not have reached near the waistband of his pants is self-contradictory, because he could
have done so even if his hands were handcuffed behind him. For both of these reasons, the
9
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32.
Upon seeing the struggle, Defendant Harriman climbed into the van to assist
Defendant Harkness.
33.
As Plaintiff began kicking, Defendant Harriman directed his attention to
controlling Plaintiff’s legs. While doing so, Defendant Harriman observed Plaintiff quickly
reaching toward the back of his waist with his left hand.
34.
Defendant Harriman yelled at Plaintiff, “[S]top reaching!”
35.
Defendants Harriman and Harkness believed that Plaintiff was reaching for a
weapon based on reports regarding Plaintiff and the fact that he had not been searched
thoroughly by that time.
36.
Defendant Harkness undid Plaintiff’s belt and pulled his pants down while
Defendant Harriman checked the interior of Plaintiff’s pants and pockets. That search yielded
negative results.
37.
In Defendant Harriman’s experience, the waistband is a common spot utilized by
criminals to carry and conceal weapons, and it is common for weapons to become dislodged
from the waistband and fall inside the pants, particularly during or after fleeing from or resisting
police officers.
38.
After checking Plaintiff’s pants and pockets, Defendant Harriman directed his
attention to the waistband of Plaintiff’s boxer briefs. Defendant Harriman then ran his right
hand along Plaintiff’s waistband to confirm whether he was concealing anything inside his boxer
briefs. This search yielded negative results.7
Court finds that Plaintiff has not controverted the above-stated fact by Defendants.
7
The Court notes that, at this point of their recitation of the facts, Defendants assert that at
no time during this search of Plaintiff’s waistband did Defendant Harriman with his barehand
make “skin-to-skin” contact with Plaintiff’s buttocks area, and that indeed Defendant Harriman
would never do such a thing out of concerns for safety and hygiene. (Dkt. No. 117, Attach. 10,
at ¶¶ 46-47.) Granted, Defendants’ factual assertion is supported by an accurate record citation.
(Dkt. No. 117, Attach. 10, at ¶ 15 [Harriman Decl.].) However, during its general review of the
10
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39.
During the time Plaintiff’s pants were down, he was at in the far “back” of the
van, at its front wall away from the rear doors. Based on his position, and the fact that
Defendants were standing between Plaintiff and the doors, it would have been extremely
difficult for any bystander on the street to see him with his pants down.
40.
Throughout the search, Plaintiff repeatedly attempted to press the left side of his
waist against the front wall, preventing Defendant Harriman from searching him without
difficulty.
41.
Article III, Section 9.17 of the Syracuse Police Department’s operations policy
requires that “[a]ll persons taken into custody will be thoroughly searched for weapons,
evidence, means of escape, and/or contraband prior to being transported.”
42.
As Defendant Harriman started to follow Defendant Harkness out of the van,
Plaintiff again lunged at him and attempted to headbutt him. In response, Defendant Harriman
pushed his right forearm towards Plaintiff to deflect the blow.
43.
Defendant Harriman then removed his pepper spray, pointed it at Plaintiff, and
informed Plaintiff that he would be sprayed if he did not sit down. Plaintiff obeyed this
command and Defendant Harriman exited the van without further incident.
44.
Plaintiff was charged with Resisting Arrest and Harassment in the Second Degree
with regard to his conduct on February 24, 2017. He was also charged with Aggravated
Harassment in the Second Degree and Criminal Contempt in the First Degree for his conduct on
February 23, 2017.
record, the Court has come across record evidence controverting this factual assertion. (Dkt. No.
117, Attach. 2, at 21, 50, 56 [Pl.’s Dep.]; Dkt. No. 122, Attach. 3, at 62, 66 [Pl.’s 50-h Exam.].)
For this reason, the Court has omitted this factual assertion from the above statement of
undisputed material facts.
11
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45.
Plaintiff was further charged in two additional cases involving S.V. with
Aggravated Harassment in the First Degree, Criminal Contempt in the First Degree, and
Criminal Contempt in the Second Degree.
Plaintiff’s Arrival at Onondaga County Justice Center
46.
At the Justice Center, Plaintiff was met by Onondaga County Custody
Department Sergeant Jeffrey Wick.
47.
At that time, Sergeant Wick was “familiar” with Plaintiff due to his numerous
incarcerations at the Justice Center, and Sergeant Wick estimated that he has interacted with or
seen Plaintiff at the Justice Center on 10 to 15 separate occasions.
48.
Sergeant Wick was aware that Sheriff’s Office personnel have had to use force in
gaining Plaintiff’s compliance on multiple occasions.
49.
Plaintiff reported to Sergeant Wick that SPD officers had made unwanted sexual
contact with him.
50.
At some point within the months or weeks prior to February 24, 2017, Plaintiff
made an unfounded complaint alleging what he perceived to be to be sexual misconduct on the
part of Sheriff’s Office personnel.
51.
In Sergeant Wick’s experience, when an inmate arrives at the Justice Center
claiming to have been subjected to unwanted sexual contact, a common practice is to arrange for
a medical evaluation or “rape kit” at a medical center in Syracuse.
52.
Accordingly, in light of Plaintiff’s previous unfounded complaint alleging what
he perceived to be sexual misconduct on the part of Sheriff’s Office personnel, Sergeant Wick
believed it particularly appropriate to provide Plaintiff with an opportunity to have a “rape kit”
performed at an offsite medical center.
12
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53.
Sergeant Wick communicated to SPD officers that, before Plaintiff could be
booked into the Justice Center, he would need to be taken to a medical center for evaluation.
Plaintiff’s Deposition Testimony
54.
Plaintiff does not know what Defendants Harkness and Harriman look like and
cannot tell the difference between the two.
55.
Plaintiff cannot recall expressing any verbal objection to Defendants searching
him in the back of the prisoner transport van.
56.
Plaintiff cannot recall whether Defendants said anything to him while he was in
the back of the prisoner transport van.
57.
Plaintiff was “turned facing the wall” away from Defendants at the time of the
58.
Plaintiff could not see Defendants during the search.
59.
Plaintiff does not know “which officer really pulled my pants down and did what
search.
he did.”
60.
At no time did Defendants or any officer “penetrate” Plaintiff.
61.
Plaintiff admitted that his repeated use of the term “rectum” to describe the area
allegedly touched by one of the Defendants was “probably” a “mistake,” and affirmed that he
was referring to the area “outside” of his rectum (that is, his “sphincter” and/or “an[us]”).8
62.
When Plaintiff arrived at the Justice Center, he refused to get out of the back of
the transport van.
8
The Court has added the ten words at the end of the above-stated fact, because, when
fairly read, Plaintiff’s deposition states that the “mistake” he previously made (in repeatedly
asserting that Defendants touched his rectum) was that it was his “rectum” that Defendants
touched, not that there was a touching by Defendants of the area outside his rectum. (Dkt. No.
117, Attach. 2, at 54-55.)
13
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63.
The SPD officers transporting Plaintiff asked him if he was going to get out of the
van “with any problems,” but he did not respond.
64.
The SPD officers then stated that “they were going to have to get the SERT team
of the Justice Center.”
65.
Thereafter, Sergeant Wick came to the back of the van, opened the doors, and
asked Plaintiff what the problem was.
66.
Plaintiff knew Sergeant Wick, having seen him “plenty of times” from previous
incarcerations at the Justice Center.
67.
After Plaintiff explained what had happened, Sergeant Wick told the officers he
would not accept Plaintiff at the Justice Center “until he gets checked out by a hospital.”
68.
Plaintiff did not make any request to go to the hospital.
69.
Plaintiff was transported to St. Joseph’s Hospital in Syracuse, where he had a
“rape kit” examination performed.
70.
According to Plaintiff, the “rape kit” examination consisted of a nurse removing
his boxer briefs, putting them into an evidence bag, and swabbing his buttocks with a small
cotton swab.
71.
Plaintiff does not know what the nurse did with the kit after that.
72.
Plaintiff has never been told the results of the “rape kit.”
73.
Plaintiff declined to release the “rape kit” to SPD.
74.
Plaintiff cannot recall whether he told the nurse who performed the “rape kit”
about what happened to him.
75.
Plaintiff does not remember the names of any of the medical personnel he saw at
St. Joseph’s Hospital.
14
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76.
Plaintiff was not prescribed any medications at St. Joseph’s Hospital.
77.
Plaintiff has never seen or reviewed his medical records from St. Joseph’s
Hospital from that day.
78.
Plaintiff has never received a mental health diagnosis in connection with his
arrest on February 24, 2017.
79.
Plaintiff has participated in anger management treatment in the past.
80.
Plaintiff contacted Vera House in Syracuse in connection with his allegations
against Defendant.
81.
Plaintiff ultimately complained to Vera House about what he perceived to be
gender discrimination because they did not want to help him.
82.
Plaintiff acknowledged in his interrogatory answers that he was in violation of an
order of protection related to S.V. on February 24, 2017.
83.
Plaintiff ultimately pled guilty to Criminal Contempt in the First Degree for his
actions on February 23 and February 24, 2017.
C.
Parties’ Briefing on Defendants’ Motion for Summary Judgment
1.
Defendants’ Memorandum of Law
Generally, in their motion, Defendants make three arguments. (Dkt. No. 117, Attach. 15,
at 8-20 [Defs.’ Mem. of Law].) First, Defendants argue that Plaintiff’s excessive force claim
pursuant to the Fourth Amendment should be dismissed. (Id. at 8-16.)9 More specifically,
Defendants argue that the force used (i.e., the nature of the search in the prisoner transport van)
was justified by (a) the severity of the crime at issue, which involved not only violence and/or
threatened violence (including reports that Plaintiff had a firearm), but also Plaintiff’s actions in
9
Page citations in this Decision and Order refer to the page numbers used in the Court’s
Case Management / Electronic Filing (“CM/ECF”) System, not to the page numbers contained in
the parties’ motion papers.
15
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resisting arrest, (b) the fact that Plaintiff’s own resistance prevented them from adequately
searching him before the prisoner transport van arrived and that Plaintiff continued to resist in
the transport van, and (c) the fact that Plaintiff repeatedly pressed his body against the wall of
the van and reached toward his waistband, a place where it is common for individuals to carry or
conceal weapons, and thus Defendants had reason to believe he might be hiding a weapon there.
(Id.) Defendants argue that the search extended to “the interior of [Plaintiff’s] pants and his
pockets,” and “along the waistband of Plaintiff’s underwear” or “boxer briefs,” but not into the
interior of those boxer briefs. (Id. at 14. [“At all times, Officer Harriman’s hand remained on the
exterior surface of Plaintiff’s boxer briefs.”].) Finally, Defendants argue that Plaintiff has
conceded that there was no contact with his “rectum” or any kind of penetration of his body, and
he has not provided evidence of any physical or mental injuries resulting from Defendants’
alleged excessive force. (Id. at 14-15.)
Second, Defendants argue that any remaining claims predicated upon a theory of failure
to intervene in order to stop or prevent excessive force must be dismissed because there can be
no such claim where, as here, the plaintiff has failed to establish a substantive excessive force
claim, and, notwithstanding, Plaintiff has failed to identify any steps that either Defendant failed
to reasonably take to protect him. (Id. at 17-18.)
Third, Defendants argue that, in the event that Plaintiff has established any constitutional
violation, they are entitled to qualified immunity because reasonably competent officials could
disagree as to whether Defendants’ actions were appropriate under the circumstances. (Id. at 1920.)
2.
Plaintiff’s Opposition Memorandum of Law
16
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Generally, in his response to Defendants’ motion, Plaintiff makes two arguments. (Dkt.
No. 122, Attach. 19, at 6-9 [Defs.’ Opp’n Mem. of Law].) First, Plaintiff argues that his
excessive force and failure-to-intervene claims should not be dismissed because there is
admissible record evidence that, by stripping Plaintiff down to his underwear in the van,
Defendants violated the SPD’s own explicit use-of-force policy (for example, the Defendants’
police reports, in which they admit stripping Plaintiff to his underwear). (Id. at 6-7.)
Second, Plaintiff argues that Defendants are not entitled to qualified immunity because
(a) the question of whether a defendant is entitled to qualified immunity should be resolved
before the completion of discovery and before the filing of motions for summary judgment, and
(b) their conduct was objectively unreasonable and unlawful based on the evidence, the fact that
a thorough search of Plaintiff had already been conducted, and the fact that there is no proof that
Plaintiff had a weapon on his person. (Id. at 7-9.)
3.
Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum, Defendants make three arguments. (Dkt. No.
123, Attach. 1, at 3-11 [Defs.’ Reply Mem. of Law].) First, Defendants argue that their motion
should be granted because Plaintiff has failed to respond to Defendants’ Statement of Material
Facts as required by the Local Rules of this Court in that he has failed to provide a matching
numbered response to each of the factual assertions in Defendants’ Statement of Material Facts,
and has failed to provide record citations for many of the factual assertions he makes in the
statement he does provide. (Id. at 3-6.)
Second, Defendants argue that Plaintiff has abandoned his excessive force and failure-toprotect claims because he has failed to address Defendants’ substantive arguments as to those
claims. (Id. at 7-10.) Defendants argue that, rather than addressing the substance of those
17
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claims, Plaintiff has merely argued that Defendants are liable because the Citizen Review Board
found they violated municipal policy. (Id.) Defendants argue that such finding does not actually
compel a finding of a constitutional violation. (Id.) Finally, Defendants argue that Plaintiff’s
argument that the issue of qualified immunity must be raised before the completion of discovery
has no basis under the law. (Id.)
Third, Defendants argue that Plaintiff should not be permitted to assert new claims in
opposition to Defendants’ motion, namely his new claim that Defendants’ alleged violation of
municipal policy was the product of a failure-to-train that amounts to a constitutional violation.
(Id. at 10-11.) Defendants explain that, notwithstanding the fact that this claim is improperly
being asserted for the first time in Plaintiff’s response memorandum of law, Plaintiff has not
named the City of Syracuse as a party in his Amended Complaint, and therefore this failure-totrain argument is inapplicable and misplaced. (Id.)
II.
LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).10 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
10
As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation
omitted]. As the Supreme Court has explained, “[The non-movant] must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
18
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In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).11
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that nonmovant is proceeding pro se.255 (This is because the Court extends special solicitude to the pro
se litigant by ensuring that he or she has received notice of the consequences of failing to
properly respond to the motion for summary judgment.).12 As has often been recognized by both
the Supreme Court and Second Circuit, even pro se litigant must obey a district court’s
procedural rules.13
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
11
Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching number paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
5
12
Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing
cases).
13
Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
19
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the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten
the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1 by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement14–even where the non-movant was proceeding pro se.15
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).16 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. See
14
Among other things, Local Rule 56.1(b) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. N.D.N.Y. L. R. 56.1(b).
15
Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases).
16
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
20
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N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
III.
ANALYSIS
After careful consideration of whether Defendants are entitled to summary judgment, the
Court must answer this question in the negative for the following reasons.
A.
Substantive Constitutional Violation
As an initial matter, the Court observes that, although Plaintiff is asserting a claim of
“excessive force,” he appears to have limited it to only Defendants Harkness and Harriman’s
alleged contact during the search in the SPD prisoner transport van. (Dkt. No. 8 [Pl.’s Am.
Compl.].) Notably, there is evidence of some amount of physical struggle between officers and
Plaintiff during his arrest before he was placed in the van (the precise nature of which is disputed
by the parties); however, Plaintiff does not mention this physical struggle in his Amended
Complaint nor does he assert that any force used by the officers during that struggle was
excessive or unlawful. As a result, to the extent that the parties dispute the facts related to the
struggle before Plaintiff was placed in the SPD prisoner transport van, the Court finds that such a
dispute would not warrant the denial of Defendants’ motion for summary judgment.17 Because
of the allegations in the Complaint, the Court constrains its analysis to the actions inside the
prisoner transport van.
17
Of course, an exception to this finding is the extent to which the struggle outside the van
is relevant to whether the scope of the search inside the van was necessary.
21
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Additionally, the Court observes that Plaintiff’s argument that Defendants committed a
constitutional violation because they (in Plaintiff’s estimation) violated the SPD’s use-of-force
policy is unavailing for three reasons. First, to the extent that Plaintiff’s argument supports a
theory of municipal liability, Plaintiff did not previously assert any claim for municipal liability
in his Amended Complaint and cannot do so at this late stage of the proceedings, in response to
Defendants’ motion for summary judgment. As Defendants argue, the existence of a municipal
policy or a municipality’s failure to properly train its employees are considerations when a
plaintiff attempts to hold a municipality responsible for the actions of its employees. However,
Plaintiff has not named the City of Syracuse as a defendant, but rather has named only the
individual two officers he alleges were involved.18 Second, even construing Plaintiff’s argument
as asserting that a violation of the use-of-force policy constitutes proof of excessive force, the
violation of such a municipal policy does not, by itself, show such a constitutional violation. See
Rizk v. City of New York, 462 F. Supp. 3d 203, 220 (E.D.N.Y. 2020) (noting that a violation of a
departmental policy “does not, in and of itself, amount to a violation of a right protected by the
Constitution or federal law”). Third, the only “evidence” that Plaintiff adduces that there has
been a violation of the SPD’s use-of-force policy (other than his own testimony) is the Citizen
Review Board’s Findings and Recommendations, which (as argued by Defendant) do not
actually compel a finding of a constitutional violation.
As to Plaintiff’s substantive constitutional claim, the Court begins its analysis by
observing that, although Plaintiff has articulated his claim as one for “excessive force” in his
Amended Complaint, the factual allegations supporting that claim do not regard a use of force,
but rather are more appropriately characterized as supporting a claim for an unreasonable search.
18
Plaintiff did initially name SPD as a Defendant, but SPD was terminated from this action
as a result of previous proceedings in this litigation. (Dkt. No. 5 [Decision and Order filed July
14, 2017].)
22
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Furthermore, this apparent mischaracterization of his claim appears to have been caused by the
fact that, although Plaintiff became represented by counsel in January 2020, his Amended
Complaint was filed in August 2017, while he was proceeding pro se. (Dkt. Nos. 8, 85.)
Because Plaintiff’s characterization of his claims were therefore made when he was proceeding
pro se, the Court is required to construe his Amended Complaint as raising the strongest
argument that it suggests. McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir.
2017) (noting that “[t]he policy of liberally construing pro se submissions is driven by the
understanding that implicit in the right of self-representation is an obligation on the part of the
court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training”). As a result, because Plaintiff’s own
factual allegations plausibly suggest that the appropriate basis for Plaintiff’s claim is an
unreasonable search rather than excessive force, the Court will assess Plaintiff’s claim under the
standard for unreasonable search and seizure. The Court notes that both search/seizure and
excessive force claims arise under the Fourth Amendment, and both are subject to the Fourth
Amendment’s reasonableness standard. See Terranova v. New York, 676 F.3d 305, 308 (2d Cir.
2012) (noting that excessive force claims, like unlawful search claims, are “judged under the
Fourth Amendment’s objective reasonableness standard”); Hudson v. New York City, 271 F.3d
62, 68 (2d Cir. 2001) (noting that the objective reasonableness standard has been “extended from
searches to other types of Fourth Amendment violations, like excessive force”); Falls v. (Police
Officer) Detective Michael Pitt, 16-CV-8863, 2021 WL 1164185, at *16 (S.D.N.Y. Mar. 26,
2021) (finding that the portion of plaintiff’s “excessive force” claim that involved allegations
that defendants emptied his pockets, checked his waistline, and reached down into his pants from
23
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his underwear to his socks was “more properly analyzed as an unreasonable search claim, rather
than a claim based on alleged excessive force”).19
“The overriding function of the Fourth Amendment is to protect personal privacy and
dignity against unwarranted intrusion by the State,” and “[t]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’” Schmerber v. California, 384 U.S. 757, 767 (1996); Brigham
City v. Stuart, 547 U.S. 398, 403 (2006). “Determining whether a search is reasonable requires
balancing ‘the need for the particular search against the invasion of personal rights that the
search entails. Courts must consider the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place in which it is conducted.’” Towns v.
Stannard, 431 F. Supp. 3d 44, 64 (N.D.N.Y. 2019) (Sannes, J.) (quoting Bell v. Wolfish, 441
U.S. 520, 559 [1979]). Whether a search or seizure is reasonable is an objective inquiry; “an
officer’s subjective intent is irrelevant under this standard,” and reasonableness must be assessed
19
The Court finds that this liberal construction of Plaintiff’s claim does not prejudice
Defendants with regard to their motion, because, even if the Court were to assess Plaintiff’s
claim as an excessive force claim, summary judgment would not be warranted. In assessing
whether force is excessive under the Fourth Amendment reasonableness standard, the Court
would consider “the facts and circumstances of each particular case, especially (1) the severity of
the crime at issue, (2) whether the arrestee poses an immediate threat to the officer or passerby,
and (3) whether the arrestee is actively resisting arrest or attempting to evade arrest by flight.”
Lee v. City of Troy, 19-CV-0473, 2021 WL 567240, at *9 (N.D.N.Y. Feb. 16, 2021) (Hurd, J.)
(internal quotation marks omitted). However, “the use of entirely gratuitous force is
unreasonable and therefore excessive.” Lee, 2021 WL 567240, at *9 (quoting Tracy v.
Freshwater, 623 F.3d 90, 99 n.5 [2d Cir. 2010]). Here, the Court finds that the above-described
factors generally weigh in favor of a finding of reasonableness given the admissible evidence
that (a) Plaintiff was being arrested for violating an order of protection and making threats of
violence, (b) officers were aware of reports that Plaintiff was making threats of violence and that
he possessed a firearm, and (c) Plaintiff engaged in physically combative behavior both when he
was being arrested and when Defendants attempted to search him. However, because the parties
dispute the exact nature of the circumstances surrounding the alleged “use of force” (i.e., that
one of the Defendants pulled down Plaintiff’s boxer shorts and swiped a bare hand against his
anus), and because a reasonable factfinder could conclude that the version of the facts alleged by
Plaintiff, if accepted, involved entirely gratuitous “force” in relation to Defendants’ need to
conduct a protective search for a firearm incident to arrest, the Court would find summary
judgment would not be appropriate.
24
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“‘without regard to the underlying intent or motivation of the officers involved.’” Hudson, 271
F.3d at 68 (quoting Scott v. United States, 436 U.S. 128, 137-39 [1978]); see Graham v. Connor,
490 U.S. 386, 397 (1989) (“As in other Fourth Amendment contexts . . . the reasonableness
inquiry . . . is an objective one: the question is whether the officers’ actions are objectively
reasonable in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation”).
Additionally, “the Fourth Amendment generally proscribes unreasonable intrusions on
one’s bodily integrity, and other harassing and abusive behavior that rises to the level of
unreasonable seizure.” Falls, 2021 WL 1164185, at *29 (finding that claims for “sexual
harassment” and “sexual abuse” to be duplicative of a claim for an unreasonable search).
“‘Unreasonable, non-consensual, inappropriate touching,’ for example, ‘can constitute
unreasonable intrusions into a plaintiff’s bodily integrity in violation of the Fourth
Amendment.’” Falls, 2021 WL 1164185, at *16; accord, Brown v. City of Utica, 17-CV-1190,
2020 WL 1046022, at *6 (N.D.N.Y. Mar. 4, 2020) (Sannes, J.).
Here, there is a genuine dispute of material fact as to what occurred during the search.
Defendants have presented admissible evidence to support their argument that they lowered
Plaintiff’s jeans in order to search inside his pants for a firearm and that they felt around the
waistband of his boxer shorts, but that they at no time removed his boxer shorts or made contact
with his anus. Plaintiff, on the other hand, has presented admissible evidence to support his
argument that Defendants removed his boxer shorts and swiped a bare hand between his
buttocks, resulting in a touch of his anus.20
20
The Court notes that, although Plaintiff’s Amended Complaint bases this claim on an
allegation that “barehanded” contact was made with his “rectum” (and not his “anus”), it also
bases this claim on an allegation that such contact was made “between [Plaintiff’s] buttocks.”
(Dkt. No. 8, at 4.) Because (as previously stated) the factual allegations of a pro se pleading
25
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In general, courts in this circuit have been reluctant to grant summary judgment where
there is a genuine dispute of material fact as to whether a defendant officer reached into an
arrestee’s clothes (as opposed to conducting an over-the-clothes pat-down search) during a
search incident to arrest and made under-the-clothes or skin-to-skin contact with a private area.
See Falls, 2021 WL 1164185, at *16 (finding a triable issue of fact about the reasonableness of a
search incident to arrest where it was alleged that defendants reached into his clothing as
opposed to conducting a pat-down over his clothing) (collecting cases); Thomas v. City of New
York, 17-CV-8593, 2020 WL 6712306, at *7 (S.D.N.Y. Nov. 16, 2020) (stating that a claim
involving skin-to-skin touching of the plaintiff’s genitals would be actionable as a unreasonable
search); Brown, 2020 WL 1046022, at *6 (denying summary judgment due to genuine dispute of
material fact as to whether defendant had more than a “brief contact with [plaintiff’s] private
area”); Anderson v. Waterbury Police Dep’t, 14-CV-0829, 2017 WL 1157843, at *11 (D. Conn.
Mar. 28, 2017) (denying summary judgment due to issue of fact as to whether search was
unreasonable where the parties disagreed about whether defendant officer’s action of swiping his
hand between plaintiff’s butt cheeks under his underwear during the search constituted a sexual
assault or a reasonable search); Thomas v. O’Brien, 08-CV-0318, 2010 WL 3155817, at *9
(N.D.N.Y. Aug. 9, 2010) (Mordue, C.J.) (denying motion for summary judgment because there
was a dispute as to whether Defendant had shoved his gloved hand into plaintiff’s pants, groped
and squeezed his scrotum, and rammed his fingers between plaintiff’s buttocks and scratched his
anus roughly).
should be liberally construed to raise the strongest claim they suggest, the Court finds that
Plaintiff’s Amended Complaint asserts a claim arising from the unnecessary skin-on-skin contact
with his anus, rather than his rectum.
26
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Although, as discussed above in note 19 of this Decision and Order, the undisputed facts
establish that Defendants had a reasonable basis for searching Plaintiff for a weapon based on (a)
the fact of his arrest for violating an order of protection as to S.V., (b) the facts known to
Defendants at the time of the search, including reports that Plaintiff had a firearm and had
threatened violence against not only S.V. and her children, but also police officers, and (c)
Plaintiff’s conduct in resisting arrest to some extent, it is not clear that a search such as Plaintiff
recounts would be reasonable. In particular, it is not clear that it would have been objectively
reasonable for Defendants to conduct what was essentially a strip search with physical contact
with Plaintiff’s anus in order to ensure that Plaintiff did not have a firearm or another weapon
hidden on his person for the purposes of the search incident to arrest. Even if Defendants had an
individualized reasonable suspicion21 that Plaintiff might be hiding a firearm or other weapon
based on the information provided to SPD, it is not established that conducting such a search
would have been reasonable under the circumstances, particularly given that weapons like a
firearm tend to be much larger than items such as drugs and other contraband and thus much
more likely to be discoverable from a thorough over-the-clothes pat-frisk. Although the search
was conducted inside of the police van, the doors of the van were open22 and conducting such a
21
The Second Circuit has held that the requirement that there be reasonable suspicion to
conduct a visual body cavity search applies to situations where the individual searched has been
arrested for either a misdemeanor or a felony offense. See Sloley v. VanBramer, 945 F.3d 30, 38
(2d Cir. 2019). Although the search alleged by Plaintiff does not fit squarely with the definitions
of either a strip search or a visual body cavity search (given that the search involved physical
contact but did not involve any looking or probing into a cavity), the Court sees no reason why
the same requirement would not apply to the conduct here. See Monroe v. Gould, 372 F. Supp.
3d 197, 204 (S.D.N.Y. 2019) (applying the reasonable suspicion standard to a manual body
cavity search involving spreading the plaintiff’s buttocks and penetrating plaintiff’s rectum with
a finger for a misdemeanor arrestee).
22
Defendant Harriman swore in his affidavit that, at the time of the search, Plaintiff was “at
the front wall away from the rear doors” and both he and Defendant Harkness were “standing
between [Plaintiff] and the doors,” such that “it would have been extremely difficult for any
bystander on the street to see him.” (Dkt. No. 117, Attach. 10, at ¶ 16 [Harriman Aff.].)
27
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search more or less in a public place (i.e., in a vehicle on a public street) is a far cry from the
typical situation where such searches are conducted in a holding facility or police station. See
Illinois v. Lafayette, 462 U.S. 640, 645 (1983) (noting that “the factors justifying a search of the
person and personal effects of an arrestee upon reaching a police station but prior to being placed
in confinement are somewhat different from the factors justifying an immediate search at the
time and place of arrest,” and that “[p]olice conduct that would be impractical or
unreasonable—or embarrassingly intrusive—on the street can more readily—and privately—be
performed at the station”); Towns, 431 F. Supp. 3d at 64-65 (noting that “[a] strip search in a
public place, even if justified by reasonable suspicion, has been uniformly subject to close
scrutiny, and has generally required a clear showing of exigent circumstances to justify such an
extreme invasion of privacy”) (citing cases); Thomas, 2010 WL 3155817, at *9 (noting that the
fact that the alleged search inside plaintiff’s pants occurred on the front porch of a residence was
a factor to consider when assessing whether the search itself was reasonable). As a result, in
addition to the genuine dispute of material fact about whether such an invasive search occurred,
there is also a genuine dispute of material fact as to whether that search would have been
reasonable in terms of the location where it occurred that is more appropriately left for a jury to
decide.
Because there is a genuine dispute of material fact as to the nature of the search that
occurred (i.e., whether Defendants took down Plaintiff’s boxer shorts and swiped a bare hand
between his buttocks, touching his anus), and because a reasonable factfinder accepting
Plaintiff’s evidence about this conduct could find that Defendants’ search was unreasonable,
summary judgment is inappropriate.
B.
Claim of Failure to Intervene
28
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In addition to the substantive claim, Plaintiff also asserts that Defendants failed to protect
him from constitutional violations and/or to intervene to stop or prevent the commission of such
violations. “It is widely recognized that law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014).
“An officer who fails to intercede is liable for the preventable harm caused by the actions of the
other officers where that officer observes or has reason to know: (1) that excessive force is being
used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has
been committed by a law enforcement official.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994).
“To establish such a claim of failure to intervene, a plaintiff must prove the following
four elements: (1) that a constitutional violation was being committed against the plaintiff; (2)
that the officer knew, or deliberately ignored, the fact that the constitutional violation was going
to be, or was being, committed; (3) that the defendant had a reasonable opportunity to intervene
and prevent the harm; and (4) that the defendant did not take reasonable steps to intervene.”
Thomas v. City of Troy, 293 F. Supp. 3d 282, 296 (N.D.N.Y. 2018) (citing Curley v. Vill. Of
Suffern, 268 F.3d 65, 72 [2d Cir. 2001]; Anderson, 17 F.3d at 557).
Here, Plaintiff appears to assert a failure-to-intervene claim against whichever of the two
Defendants did not perform the alleged improper search. Granted, regardless of which
Defendant was involved in the failure-to-intervene, the available evidence indicates that the
allegedly improper search itself took between “only a few seconds” and as long as 20 seconds.
(Compare Dkt. No. 117, Attach. 10, at ¶ 17 [Harriman Decl.] with Dkt. No. 122, Attach. 3, at 6365 [Pl.’s 50-h Exam., testifying that the swipe of his anus took “I’d say what, 20 seconds,”
29
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although repeatedly indicating that he did not actually know how long the search took].)
However, the Court finds that even this short period of time could permit a reasonable factfinder
to conclude that the relevant Defendant had a reasonable opportunity to intervene.
The Court renders this finding given the close proximity of both Defendants at the time
of the search (both to each other and to Plaintiff), and the fact that it is reasonable to believe that
the Defendant who was not conducting the search would have been paying attention to the
actions of the other Defendant and would have reasonably been able, through words and/or
action, to intervene. See Figueroa v. Mazza, 825 F.3d 89, 108 (2d Cir. 2016) (finding that
failure-to-intervene claims were for the jury to decide despite the fact that the assault in question
lasted less than 20 seconds based on the close proximity of the defendant officers to the plaintiff
at the time of the alleged assault in the back of a police cruiser); Stroman v. Ranze, 18-CV-0149,
2019 WL 7494384, at *7-8 (N.D.N.Y. Dec. 13, 2019) (Dancks, M.J.) (noting that, although
“officers generally ‘cannot be held liable for failure to intervene in incidents that happen in a
matter of seconds,’” the issue of whether an officer had a reasonable opportunity to intervene
“can be decided as a matter of law only if ‘considering all the evidence, a reasonable jury could
not possibly conclude’ that the officer had a reasonable opportunity to intervene”) reportrecommendation adopted by 2020 WL 68610 (N.D.N.Y. Jan. 7, 2020) (Sharpe, J.); Dollard v.
City of New York, 408 F. Supp. 3d 231, 236 (E.D.N.Y. 2019) (finding summary judgment to be
inappropriate where a reasonable juror could find that an officer had a realistic opportunity to
intervene to stop at least some of the alleged conduct in a physical encounter that lasted for
approximately nine seconds).
For all of these reasons, the Court finds that summary judgment is inappropriate on
Plaintiff’s failure-to-intervene claim.
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C.
Qualified Immunity
As an initial matter, the Court rejects Plaintiff’s argument that Defendants cannot seek
the protection of qualified immunity because they were required to do so before discovery was
completed and before any motion for summary judgment was filed. Plaintiff cites no legal
authority to support such a bright line rule, and his argument is at odds with a multitude of cases
from this Circuit in which qualified immunity was resolved either on a motion for summary
judgment or at trial. The Supreme Court’s indication that it has “repeatedly stressed the
importance of resolving immunity questions at the earliest possible stage in litigation” does not
support Plaintiff’s argument because often questions of qualified immunity cannot be fully
considered without a fully developed factual record or resolution of factual disputes. See Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (considering without admonishment a qualified immunity
argument that was raised in a motion for summary judgment). As a result, the Court finds
nothing improper in Defendants’ request for a ruling on qualified immunity in conjunction with
their motion for summary judgment.
Although there has not yet been a finding on whether Defendants committed a
constitutional violation, the Court finds it appropriate to consider whether qualified immunity
would apply even if Defendants were found to have committed a constitutional violation.
“Qualified immunity shields government officials from civil damages liability unless the official
violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct.” Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017) (citing
Reichle v. Howards, 566 U.S. 658, 664 [2012]). In other words, “[a] police officer is entitled to
qualified immunity if (1) his conduct does not violate a clearly established constitutional right,
or (2) it was ‘objectively reasonable’ for the officer to believe his conduct did not violate a
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clearly established right.” Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir. 2008). When
determining whether the right at issue is clearly established such that “the contours of the right
are sufficiently clear that a reasonable official would understand that what he is doing violates
that right,” a court should ask “(1) Was the law defined with reasonable clarity? (2) Had the
Supreme Court or the Second Circuit affirmed the rule? and (3) Would a reasonable defendant
have understood from the existing law that the conduct was unlawful?” Gonzalez v. City of
Schenectady, 728 F.3d 149, 158 (2d Cir. 2013) (quoting Anderson v. Creighton, 483 U.S. 635,
640 [1987]; Young v. City of Fulton, 160 F.3d 899, 903 [2d Cir. 1998]) (internal alterations and
quotation marks omitted).
With regard to the second question, the Second Circuit has explained that, to determine
whether a right is clearly established, “we generally look to Supreme Court and Second Circuit
precedent existing at the time of the alleged violation.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir.
2015) (internal quotation marks omitted) (quoting Okin v. Vill. of Cornwall-On-Hudson Police
Dep't, 577 F.3d 415, 433 [2d Cir. 2009]).
With regard to the first question, the Supreme Court has repeatedly admonished lower
courts “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011). “This inquiry must be undertaken in light of the specific context of
the case, . . . [which] is especially important in the Fourth Amendment context, where . . . it is
sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to
the factual situation the officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal
quotation marks and citations omitted). “[A] case directly on point” is not necessarily required,
“but existing precedent must have placed the statutory or constitutional question beyond debate.”
al–Kidd, 563 U.S. at 741. That is, there must be “a case where an officer acting under similar
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circumstances . . . was held to have violated the Fourth Amendment,” White v. Pauly, 137 S. Ct.
548, 552 (2017), such that the unlawfulness of the defendant officer’s conduct would “follow
immediately,” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Anderson v. Creighton, 483
U.S. 635, 641 [1987]).
Here, the Court defines the right in question as the Fourth Amendment right against
being subjected to an unreasonable search or intrusion on one’s bodily integrity involving a strip
search and/or physical contact with a private area during a search incident to arrest before
transport to a police station or other facility. There certainly exist district court cases from
before the date of the incident in question (i.e., February 24, 2017) recognizing some variation of
this right.23 The Second Circuit recently reiterated that “‘the decisions of other federal lower
courts, are relevant and often persuasive’ authority on the ‘clearly established’ issue.” Sloley,
945 F.3d at 42 (quoting Charles W. v. Maul, 214 F.3d 350, 357 [2d Cir. 2000]). As to authority
from the Second Circuit, in the case of Rivera v. United States, 928 F.2d 592 (2d Cir. 1991), the
Second Circuit found that it was error to dismiss claims on summary judgment because there
23
See, e.g., Santiago v. City of Yonkers, 13-CV-1077, 2015 WL 6914799, at *6 (S.D.N.Y.
Oct. 30, 2015) (finding that “[t]he [post-arrest] search of plaintiff raises two distinct Fourth
Amendment questions,” one that “bear[s] on plaintiff's rights to be free from sexual assault at the
hands of a police officer during an arrest” and one that concerns the right “to be free from an
unreasonable search”); Wright v. City of Waterbury, 07-CV-0306, 2011 WL 1106217, at *6 &
n.9 (D. Conn. March 23, 2011) (“Sexual misconduct by a police officer during a ‘seizure’ is
analyzed under the Fourth Amendment. Wright does not contest that the alleged sexual assault
occurred while he was under arrest. Accordingly, the Fourth Amendment reasonableness
standard applies rather than the Fourteenth Amendment substantive due process inquiry.”);
Thomas, 2010 WL 3155817, at *9 (denying motion for summary judgment because there was a
dispute as to whether, during a search incident to arrest on a front porch, Defendant had shoved
his gloved hand into plaintiff’s pants, groped and squeezed his scrotum, and rammed his fingers
between plaintiff’s buttocks and scratched his anus roughly); cf. Love v. Town of Granby, 03CV-1960, 2004 WL 1683159, at *4-6 (D. Conn. July 12, 2004) (recommending the denial of
defendants’ motion for summary judgment on the plaintiff’s Fourth Amendment unreasonable
search and sexual assault claim based on the plaintiff's allegations that during pre-arrest pat
search one officer grabbed his scrotum, swore at him and “called him a faggot”), adopted, Order
(D. Conn. filed July 28, 2004).
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were substantial questions of fact as to whether a strip search of pre-transport arrestees was
reasonable where, among other things, there were questions as to whether a pat-down search
would have sufficed to reveal any weapons. Rivera, 928 F.2d at 607. Additionally, the Supreme
Court has noted that “the interests supporting a search incident to arrest would hardly justify
disrobing an arrestee on the street.” Illinois, 462 U.S. at 645. Without further briefing from the
parties, the Court finds that the right in question was sufficiently clearly established to justify the
denial of Defendants’ request for a grant of qualified immunity for the purposes of this motion
for summary judgment.24
Moreover, there appears to be a genuine dispute between the parties as to whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation that
Defendants allegedly confronted, especially given the admissible record evidence that the
alleged offensive conduct in question lasted 20 seconds. (Dkt. No. 122, Attach. 3, at 63-65 [Pl.’s
50-h Exam.].) Because genuine disputes of fact remain that directly bear on the issue of whether
it would have been objectively reasonable for Defendants to believe their alleged conduct was
lawful (and whether the alleged conduct occurred at all), the Court finds it inappropriate to
render a judgment for Defendants as a matter of law on the issue of qualified immunity at this
time. See Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002) (“Where circumstances are in
dispute, and contrasting accounts present factual issues as to the degree of force actually
employed and its reasonableness, a defendant is not entitled to judgment as a matter of law on a
defense of qualified immunity.”); Martineau v. Newell, 17-CV-0983, 2019 WL 7606069, at *8
(N.D.N.Y. Oct. 15, 2019) (Lovric, M.J.) (finding that “[t]he existence of factual disputes
precludes a finding on qualified immunity because ‘the reasonableness of a police officer’s
24
Defendants will of course be permitted to renew their request for a grant of qualified
immunity at trial should they be found to be liable on any of Plaintiff’s claims.
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conduct is at issue in both a . . . [Fourth Amendment] analysis as well as step two of the
qualified immunity test”) (internal alterations omitted) report-recommendation adopted by 2019
WL 5883686 (N.D.N.Y. Nov. 12, 2019) (Kahn, J.).
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 117) is DENIED;
and it is further
ORDERED that the Plaintiff is directed to forward a written settlement demand to
defendants no later than October 1, 2021, and the parties are directed to thereafter engage in
meaningful settlement negotiations. The parties are directed to jointly file, on or October 22,
2021, regarding their settlement discussions and if a settlement conference would be beneficial
or a jury trial date should be scheduled.
Dated: September 21, 2021
Syracuse, NY
35
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