Zhao v. United States of America Department of Homeland Security

Filing 112

DECISION AND ORDER GRANTING Defendant's 92 Motion to Dismiss; DENYING as moot Defendant's 92 Motion for Partial Summary Judgment; DENYING Plaintiff's 96 Motion for Partial Summary Judgment. Signed by William M. Skretny, Chief Judge on 5/30/2013. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
YAN ZHAO,
Plaintiff,
v.

DECISION AND ORDER
06-CV-106S

UNITED STATES OF AMERICA,
Defendant.

I. INTRODUCTION
Plaintiff, Yan Zhao, alleges that a United States Customs and Border Protection
officer physically and unlawfully assaulted her. She brings her claim under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b).
Presently before this Court is Defendant’s motion to dismiss under Rule 12(b)(1)
and Plaintiff’s motion for partial summary judgment. For the following reasons, Defendant’s
motion to dismiss is granted and Plaintiff’s motion for partial summary judgment is denied.
II. BACKGROUND
A.

Facts1
Both parties agree that on July 21, 2004, Yan Zhao, a Chinese citizen, was involved

in an altercation with Customs Officer Robert Rhodes III in the immediate vicinity of the
Rainbow Bridge in Niagara Falls, New York.2 (Def’s St., ¶ 1; Docket No. 94.) For the

1

This Court has accepted facts in each party’s statem ent of undisputed facts (referred to as “Pl.’s
State.” and “Def.’s State.” respectively) to the extent that they have not been controverted by the opposing
party. See L. R. Civ. P. 56(a)(2) (statem ents not specifically controverted are deem ed adm itted).
2

In her am ended com plaint, Zhao also alleges that two other Custom s and Border Patrol officers –
Em m et Russell and Am ina Zinnerm an – were involved in this altercation. But neither the am ended
com plaint nor the statem ents of facts from either party provide any details on the extent of their
involvem ent. In any event, their involvem ent is irrelevant to the m otions currently before this Court.

purposes of this motion, it suffices to note that the parties maintain vastly different versions
of the circumstances of that altercation, with Zhao contending that Rhodes chased her
down without provocation, grabbed her arm, pepper sprayed her, and slammed her head
into a wall; and Rhodes maintaining that he suspected her of criminal activity and did not
use excessive force in detaining her. But the factual dispute is not the subject of the
motions pending before this Court. Instead the events and litigation that followed this
altercation currently play a more significant role.
In that vein, this is the fourth lawsuit arising out of the events on July 21, 2004. The
first suit began on July 22, 2004, when, as a result of his interaction with Zhao, Rhodes
was arrested and charged with a violation of 18 U.S.C. § 242, which makes unlawful the
“deprivation of rights under color of law.” (Pl.’s State., ¶ 7; Docket No. 96-1.) A federal
grand jury later indicted Rhodes. At trial, however, a petit jury found that the Government
failed to meet its burden, and acquitted Rhodes in September of 2005.
Rhodes himself also initiated two cases. In those tandem cases, Rhodes sued the
United States (and several agents of the United States in a separate, Bivens action3),
arguing that his arrest was unjustified. (Id., ¶ 11.) The Government eventually moved for
summary judgment, contending, inter alia, that the arrest was based on probable cause.
To support this position, the Government cited eyewitness affidavits that attested to the
unlawful use of force on Zhao. (Id., ¶¶ 12–13.) On March 7, 2012, this Court, finding that
probable cause did exist, granted the Government’s motion and closed both cases. See
Rhodes v. United States, No. 07-CV-471S, 2012 WL 777421 (W.D.N.Y. Mar. 7, 2012);

3

See Bivens v. Six Unknown Nam ed Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91
S. Ct. 1999, 2001, 29 L. Ed. 2d 619 (1971).

2

Rhodes v. Tevens, No. 07-CV-471S, 2012 WL 777421 (W.D.N.Y. Mar. 7, 2012) (Bivens
action), both affirmed by 2013 WL 849810 (2d Cir. Mar. 8, 2013).
The current case is the lone remaining suit. As noted, Zhao herself alleges here that
Rhodes’ use of force on her that day was excessive.
B.

Procedural History
This case began when Zhao filed a complaint in this Court on February 17, 2006.

(Docket No. 1.) She amended her complaint on July 28, 2006 and Defendant answered
three days later. (Docket Nos. 10, 11.) Defendant later moved to amend its answer, and
Magistrate Judge Hugh B. Scott granted that motion in part; the Government then filed its
amended answer on November 8, 2011. (Docket Nos. 78, 84, 85.)
After a long interval for discovery – Judge Scott granted several extension requests
– on January 15, 2013, both Plaintiff and Defendant filed the motions that are currently
before this Court. (Docket Nos. 92, 96.) Briefing thereon concluded April 12, 2013, at which
time this Court took the motions under consideration.
III. DISCUSSION
A.

Defendant’s Motion
The Government moves to dismiss the complaint under Rule 12(b)(1) on one

discrete issue: Zhao’s claims for negligence in the hiring, retaining, supervising, and
training of Robert Rhodes. The Government argues that this claim falls under the
discretionary-function exception to the FTCA’s sovereign-immunity waiver.4

4

In the alternative, the Governm ent argues that the claim s should be dism issed under Rule 56
because the United States would not be liable to Zhao under New York state law. But because this Court
finds that sovereign im m unity shields the Governm ent from Zhao’s negligent-training cause of action, it
need not address the Governm ent’s alternative argum ent for dism issal.

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1.

Rule 12(b)(1)

“A 12(b)(1) motion challenges the district court's authority to adjudicate a case, and,
once challenged, the burden of establishing that the Court in fact retains such authority lies
with the party who asserts jurisdiction.” Loew v. U.S. Postal Serv., No. 03-CV-5244, 2007
WL 2782768, at *4 (E.D.N.Y. Feb. 9, 2007) (citing Arndt v. UBS AG, 342 F.Supp.2d 132,
136 (E.D.N.Y. 2004)). The jurisdictional challenge here is based on sovereign immunity,
which shields the United States from suit without its consent and strips this Court of
jurisdiction. See, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L.
Ed. 2d 308 (1994). Further, “[w]hile it is generally true that motions to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) are reviewed under the same standards as
motions to dismiss for failure to state a claim under Rule 12(b)(6),” in a challenge to
jurisdiction based on sovereign immunity, “the government receives the benefit of any
ambiguities.” Loew, 2007 WL 2782768, at *4 (citing Team Obsolete Ltd. v. A.H.R.M.A.
Ltd., No. 01-1574, 2005 WL 2148981, at *1 (E.D.N.Y. Sept. 7, 2005) and Moreno v. United
States, 965 F. Supp. 521, 524 (S.D.N.Y. 1997)).
2.

The discretionary-function exception

As noted, the United States is immune from suit unless it waives that immunity.
United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349 , 63 L. Ed. 2d 607 (1980) (“It
is elementary that the United States, as sovereign, is immune from suit save as it consents
to be sued.”) (internal citations, quotation marks, and modifications omitted). The FTCA
waives the United States’ sovereign immunity for claims against “[federal] investigative or
law enforcement officers” for “assault, battery, false imprisonment, false arrest, malicious
prosecution, [and] abuse of process.” 28 U.S.C. § 2680(h). But another section of the
4

FTCA excepts from the Act's coverage
[a]ny claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or regulation
be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
This “discretionary-function exception” – “an exception to the exception,” Molchatsky v.
United States, 713 F.3d 159, 162 (2d Cir. 2013) – is “a form of retained sovereign
immunity. As a result, the [FTCA's] waiver of federal sovereign immunity does not
encompass actions based upon the performance of, or failure to perform, discretionary
functions.’” In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir. 2008).
This exception “precludes claims based on day-to-day management decisions if
those decisions require judgment as to which of a range of permissible course[s] is the
wisest.” Ortiz v. United States, No. 01 Civ. 4665(AKH), 2002 WL 1492115, at *2 (S.D.N.Y.
July 11, 2002) (citing United States v. Gaubert, 499 U.S. 315, 325, 111 S. Ct. 1267, 1273,
113 L. Ed. 2d 335 (1991)). For it to apply, two criteria must be met: “(1) the acts alleged to
be negligent must be discretionary, in that they involve an element of judgment or choice
and are not compelled by statute or regulation, and (2) the judgment or choice in question
must be grounded in considerations of public policy or susceptible to policy analysis.”
USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namibia, 681 F.3d 103, 111–12
(2d Cir. 2012).
An act is “discretionary” if it is not compelled by statute or regulation – that is, if an
employee has some “rightful option” other than to “adhere to [a] directive [that] specifically
5

prescribes a course of action for an employee to follow.” Gaubert, 499 U.S. at 322 (quoting
Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).
“It is the nature of the conduct, rather than the status of the actor, that governs whether
discretionary function exception applies in a given case.” Id.
Whether an act is “grounded in considerations of public policy or susceptible to
policy analysis” is evaluated based on “the nature of the actions taken,” not “the agent's
subjective intent in exercising the discretion.” Id. at 325.
Applying those standards, courts in this Circuit and throughout the country have
routinely held that training, hiring, and supervision decisions are discretionary, and thus,
federal courts lack jurisdiction over claims asserting that such acts were performed
negligently, or not at all. See Li v. Aponte, No. 05 CV 6237(NRB), 2008 WL 4308127, at
*8 (S.D.N.Y. Sept. 16, 2008) (collecting decisions from district courts within the Second
Circuit, and those from the First, Fourth, Eighth, and Ninth Circuits).
For example, in Saint-Guillen v. United States, 657 F. Supp. 2d 376, 386 (E.D.N.Y.
2009), the plaintiff sought to hold the United States Probation Office responsible for the
negligent training and hiring of one of its officers. But the court dismissed the claim under
the discretionary-function exception. Similarly, in Li, the plaintiff alleged that she was
abused by a postal service worker, but the court found that “[p]ersonnel decisions of the
United States generally fall within the discretionary function exception to the FTCA,” and
dismissed the claim. 2008 WL 4308127, at *8.
Other courts agree. See, e.g., Xiang Li v. Duncan, No. 5:10-CV-0802 LEK/GHL,
2011 WL 2432915, at *4 (N.D.N.Y. Apr. 18, 2011) (“Personnel decisions of the United
States generally fall within the discretionary function exception to the FTCA”) (Report and
6

Recommendation); Carter v. United States, 725 F. Supp. 2d 346, 356 n. 6 (E.D.N.Y. 2010)
(if plaintiff had pursued a negligent training theory, “the Court would hold that the hiring,
training and supervision of postal inspectors falls within the” discretionary-function
exception), overturned on other grounds, 494 Fed. Appx. 148; Cuoco v. U.S. Bureau of
Prisons, No. 98 CIV. 9009(WHP), 2003 WL 22203727, at *6 (S.D.N.Y. Sept. 22, 2003)
(“[I]nsofar as Cuoco may also assert an FTCA claim for “negligent training, supervision,
control and discipline of the defendants” . . . that claim is dismissed, as challenges to the
personnel decisions of the United States are barred by the discretionary function exception
to the FTCA); Keena v. United States, 927 F.Supp. 62, 64-67 (E.D.N.Y. 1996) (finding
claim asserting negligent hiring, supervision, retention and employment to be barred by the
discretionary-function exception to the FTCA).
Zhao does not address these cases. Instead, she argues that (1) broadly speaking,
the discretionary-function exception does not apply to claims for negligent hiring, training,
or supervision and (2) even if it does apply generally, Rhodes violated mandatory directives
in his encounter with Zhao, and thus the exception does not apply to this specific case.
Zhao’s first argument is statutory in nature. She contends that 28 U.S.C. § 2680(h),
which establishes FTCA jurisdiction for “acts or omissions” of law enforcement officers for
“any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution,” renders the discretionary-function exception
inapplicable to her negligent-training claim. Zhao asserts the language “any claim” is
expansive and thus eliminates the discretionary-function limitation. The language “arising
out of,” the argument continues, contemplates discretionary-function claims deriving from
assaults, batteries, false arrests, etc.
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But Zhao is unable to cite any case holding as much. Instead, Zhao relies on
Nguyen v. United States, from the Eleventh Circuit, where the court held that the claims
articulated in § 2680(h) should not be barred by the discretionary-function exception. 556
F.3d 1244 (11th Cir. 2009). But there were no claims for negligent training, supervision, or
hiring in Nguyen – the court considered only claims for false arrest, false imprisonment,
and malicious prosecution. Id. at 1250.
More importantly, to the extent the Nguyen holding could be read to eliminate the
discretionary-function exception for negligent-training claims, that holding would contradict
the law of this Circuit; the Nguyen court itself recognized this. “[F]ive other circuits have
taken a different approach about how the two subsections interact,” it wrote. “They have
concluded that even claims listed in the proviso to § 2680(h) are barred if they are based
on the performance of discretionary functions within the meaning of § 2680(a).” The
Second Circuit is among those five circuits. In Caban v. United States, 671 F.2d 1230,
1234 (2d Cir. 1982), the court held:
By its terms, this section [2680(h)] waives the government's
immunity to liability arising out of certain intentional torts
committed by investigative and law enforcement officers such
as the INS agents. We believe that the government is correct
in asserting that this subsection must be read in conjunction
with the discretionary function exception.
Hence, under this circuit’s law, the discretionary-function exception applies to claims under
§ 2680(h), rendering Zhao’s argument null.
Her second argument fares no better. To support her contention that mandatory
regulations were violated, she relies on her expert, George Kirkham, D. Crim., who
references the “Use of Force” guidelines published by the National Law Enforcement Policy
8

Center. Among other things, these guidelines instruct that “[o]fficers must be provided with
a clear and concise department policy that establishes guidelines and limitations on the
use of force generally” and that “law enforcement agencies have a responsibility to ensure
that police officers are adequately trained in the use of force that is objectively reasonable.”
(“Use of Force” guidelines, revised in 2006, attached as Ex. I; Docket No. 109.)
But in her brief, Zhao does not indicate to what extent, if at all, these general policies
are binding on the Department of Homeland Security. Further, Zhao simply recites several
provisions of the policy, and fails to argue, or point to any evidence that would suggest, that
Rhodes was not trained in accordance with them. While Dr. Kirkham vaguely opines that
the Department of Homeland Security violated “mandatory” standards, he does not cite a
single statute or regulation to support this conclusion; instead he relies on his own report
from 1989. (See Kirkham Decl., ¶ 11, attached as Ex. G; Docket No. 109.) Without clear
mandates, whatever training Rhodes received was discretionary, and thus within the
confines of the exception. See Flynn v. United States, 902 F.2d 1524, 1531 (10th Cir.
1990) (“There being no fixed standards for training . . . the conduct of the federal
employees falls within the discretionary function of the FTCA.”).
A case on which Zhao herself relies highlights the shortcomings of her argument.
In Vickers v. United States, “a detention enforcement officer with the Immigration and
Naturalization Service (INS) shot and seriously injured Miriam Vickers.” 228 F.3d 944,
946–47(9th Cir. 2000). The court found that the INS’ failure to investigate the shooting was
actionable, i.e., was not subject to the discretionary-function exception. But that was
because there are statutory regulations directly on point that specifically require officials
to conduct such an investigation. As recited by the Vickers court, “Any alleged violation of
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th[e] [use-of-firearm] standard, according to INS regulations, is to ‘be investigated
expeditiously.’” Id. at 951 (citing 8 C.F.R. § 287.10(a) and 8 C.F.R. § 287.8(a)(2)). Indeed,
the court went on to cite other regulations and INS directives to further demonstrate the
mandatory nature of the investigation requirement.
The distinction thus becomes clear: In Vickers, the INS was required to follow
directly-applicable regulations, and it thus lacked any discretion in deciding whether to
investigate the shooting. But here, Zhao does not point to any specific regulations or
directives, and therefore the Department of Homeland Security’s training and personnel
decisions remained within the boundaries of the exception. See Gaubert, 499 U.S. at 322,
111 (for exception to be inapplicable, there must be a “directive [that] specifically
prescribes a course of action for an employee to follow”); Mission of Republic of Namibia,
681 F.3d at 112 (action must be “compelled by statute or regulation”).
This Court is also satisfied that “the judgment or choice in question” is “grounded
in considerations of public policy or susceptible to policy analysis.” See Mission of Republic
of Namibia, 681 F.3d at 111–12. Once again, courts in this Circuit and beyond have
consistently found that training, hiring, and personnel decisions were the sort contemplated
by Congress when it promulgated the discretionary-function exception. See Kelly v. United
States, 241 F.3d 755, 762 (9th Cir. 2001); Saint-Guillen, 657 F. Supp. 2d at 387; Li, 2008
WL 4308127, at *8; Amberg-Blyskal v. Transp. Sec. Admin., No. CIV.A. 10-06818, 2011
WL 4470883 (E.D. Pa. Sept. 26, 2011) The reasoning, articulated by the D.C. Circuit, is
generally as follows:
The hiring decisions of a public entity require consideration of
numerous factors, including budgetary constraints, public
perception, economic conditions, individual backgrounds,
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office diversity, experience and employer intuition. Similarly,
supervision decisions involve a complex balancing of
budgetary considerations, employee privacy rights, and the
need to ensure public safety. The extent of training with which
to provide employees requires consideration of fiscal
constraints, public safety, the complexity of the task involved,
the degree of harm a wayward employee might cause, and the
extent to which employees have deviated from accepted
norms in the past. Such decisions are surely among those
involving the exercise of political, social, or economic
judgment.
Burkhart v. Washington Metro. Area Transit Auth.,112 F.3d 1207, 1217 (D.C. Cir.1997).
This Court, like many before it, finds this reasoning sound. As such, Zhao’s claim
for the negligent hiring, retaining, supervising, and training of Rhodes must be dismissed
under Rule 12(b)(1) because the United States has not waived its immunity with respect
to it.
B.

Zhao’s Motion
Although the negligent-training claim has been dismissed, Zhao’s excessive-force

claim remains. Pointing to the United States’ representations in the civil case brought by
Rhodes against the United States, Zhao contends that, under the doctrine of judicial
estoppel, the United States is foreclosed from arguing that Rhodes did not use excessive
force in detaining her.
1.

Judicial Estoppel

“Judicial estoppel prevents a party in a legal proceeding from taking a position
contrary to a position the party has taken in an earlier proceeding.” Simon v. Safelite Glass
Corp., 128 F.3d 68, 71 (2d Cir. 1997) (citing Bates v. Long Island R.R. Co., 997 F.2d 1028,
1037–38 (2d Cir.1993)). It is designed to “prohibit[] parties from deliberately changing

11

positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S.
742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001).
Though the decision to apply the doctrine lies within the court's discretion, the
Supreme Court has identified three factors that “typically inform th[at] decision”: (1) whether
a party's later position is clearly inconsistent with its earlier position; (2) whether the party
has succeeded in persuading a court to accept the earlier position; and (3) whether the
party seeking to assert an inconsistent position would derive an unfair advantage or
impose an unfair detriment on the opposing party if not estopped. Id. at 750. The Second
Circuit has also noted, in accordance with the second factor, that “judicial estoppel
prevents a party from asserting a factual position clearly inconsistent with a position
previously advanced by that party and adopted by the court in some manner.” Republic of
Ecuador v. Chevron Corp., 638 F.3d 384, 397 (2d Cir. 2011) (internal quotation marks and
modifications omitted). While these factors do not constitute “inflexible prerequisites or an
exhaustive formula for determining the applicability of judicial estoppel,” Maine, 532 U.S.
at 749, it is clear is that the doctrine only applies when “the risk of inconsistent results with
its impact on judicial integrity is certain.” Chevron Corp., 638 F.3d at 397.
Presumably because the Government’s position in the criminal case against Rhodes
was never “adopted by the court in some manner,” see Chevron Corp., 638 F.3d at 397,
Zhao does not argue that the United States is judicially estopped as a result of its position
therein.5 Rather, she argues estoppel applies as a result of Rhodes’ civil case.
In that case, Rhodes asserted that the United States violated his rights by unlawfully

5

This Court therefore considers this argum ent waived. See, e.g., JP Morgan Chase Bank v. Altos
Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005).

12

and unjustifiably arresting him. The Government disagreed, arguing that there was
probable cause for his arrest; and there is no question that, to support its argument, the
Government relied on the affidavits of two Custom and Border Patrol officers, who “stated
that they witnessed [Rhodes] throw Zhao into a wall, strike her in the head with his knee,
and grasp her hair and strike her head on the ground while attempting to apprehend her.”
Rhodes v. United States, 2012 WL 777336, at *6. This Court ultimately found probable
cause did exist, and therefore dismissed that cause of action. Id. at *7; see Zanghi v. Inc.
Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985) (probable cause is a complete
defense to an action for false arrest). Based on the affidavits submitted and arguments
made in that case, Zhao contends that the United States ought to be judicially estopped
from arguing that Rhodes did not use excessive force against Zhao.
The Second Circuit, however, has instructed courts to “carefully consider the
contexts in which apparently contradictory statements are made to determine if there is,
in fact, direct and irreconcilable contradiction.” Rodal v. Anesthesia Group of Onondaga,
369 F.3d 113, 119 (2d Cir. 2004). Undertaking that analysis, and considering the differing
contexts, it becomes clear that the United States’ statements are not irreconcilable. The
Government’s position in Rhodes false-arrest case, and the one that was adopted by this
Court, was not that Rhodes used excessive force – the position that Zhao now seeks to
preclude the Government from denying – but that two officers believed Rhodes had used
excessive force and that this, in addition to an arrest warrant from a magistrate judge,
amounted to probable cause for his arrest. These positions do not directly contradict each
other. Accordingly, under the standard articulated by the Second Circuit – that the “risk of
inconsistent results with its impact on judicial integrity [be] certain” – this Court will deny
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Zhao’s motion. See Chevron Corp., 638 F.3d at 397 (emphasis added).
To be clear, this ruling does not foreclose Zhao from introducing the testimony of
the two officers who avowed that Rhodes used excessive force while detaining Zhao.
IV. CONCLUSION
The United States’ limited motion, seeking to dismiss Zhao’s claims for the negligent
hiring, retaining, supervising, and training of Rhodes is granted because this Court lacks
jurisdiction over those claims. The Government did not move to dismiss Zhao’s claims
against Rhodes (and Emmet Russell and Amina Zinnerman) for excessive force, assault,
and false arrest. Those claims remain.6
Zhao’s limited motion, seeking to preclude the United States from arguing that
Rhodes did not use excessive force in his altercation with Zhao, is denied because the
United States did not take an irreconcilable position in Rhodes’ false-arrest case.

6

These claim s were not so specifically styled in the am ended com plaint. Instead, Zhao alleges
that the United States, through its officers, “unlawfully and without just cause arrested the plaintiff and in
the course of said arrest unlawfully laid hands upon the plaintiff, as well as acted in a m alicious, reckless,
gross and outrageous m anner and/or com m itted actions which am ounted to an assault” and that the
officers “detained plaintiff in wanton and m alicious disregard for the truth and without her consent, and
plaintiff was subject to great hum iliation and ridicule and was injured in her credit and reputation.” (Am .
Com pl., ¶¶ 10, 13; Docket No. 10.) In the interests of efficiency, this Court has construed these
allegations as asserting claim s for assault, false arrest, and excessive force .

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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s motion to dismiss (Docket No. 92) is
GRANTED, and its motion for partial summary judgment is DENIED as moot.
FURTHER, Plaintiff’s motion for partial summary judgment (Docket No. 96) is
DENIED.
SO ORDERED.
Dated: May 30, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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