Wierzbic et al v. County of Erie et al
Filing
143
DECISION AND ORDER. Defendants' Motion for Judgment as a Matter of Law 136 , is DENIED in part as to the trespass claim, and GRANTED in part as to the false arrest and excessive force claims. Plaintiffs are each awarded $ 1.00 (one dollar), as nominal damages on the trespass claim. The Clerk of Court is directed to enter judgment accordingly and to close the file. Signed by Hon. Leslie G. Foschio on 5/2/2019. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________________
RAYMOND WIERZBIC, BERNICE WIERZBIC,
BRIAN WIERZBIC, and ANGELENE WIERZBIC,
Plaintiff,
v.
ERIE COUNTY SHERIFF TIMOTHY HOWARD,
DEPUTY ERIE COUNTY SHERIFF MICHAEL HOOCK,
DEPUTY ERIE COUNTY SHERIFF JASON WEISS,
DEPUTY ERIE COUNTY SHERIFF THOMAS WAS, and
DEPUTY ERIE COUNTY SHERIFF JAMES FLOWERS,
DECISION
and
ORDER
13-CV-978F
Defendants.
_____________________________________________
APPEARANCES:
PAUL E. FALLON, ESQ.
Attorney for Plaintiffs
57 High Park Boulevard
Amherst, New York 14226
DAIRE BRIAN IRWIN, ESQ.
Attorney for Plaintiffs
210 Voorhees Avenue
Buffalo, New York 14214
LIPPES MATHIAS WEXLER FRIEDMAN LLP
Attorneys for Defendants
JENNIFER C. PERSICO,
ERIC MICHAEL SOEHNLEIN, and
JAMES PETER BLENK, of Counsel
50 Fountain Plaza
Suite 1700
Buffalo, New York 14202
JURISDICTION
On April 20, 2018, the parties to this action consented pursuant to 28 U.S.C. §
636(c) to proceed before the undersigned. (Dkt. 101). The matter is presently before
the court on Defendants’ motion for judgment as a matter of law (Dkt. 136), filed
December 11, 2018, and on motions in limine, filed on November 1, 2018, by
Defendants (Dkt. 115), and on November 2, 2018, by Plaintiff (Dkt. 118), and
Defendants (Dkt. 119).
BACKGROUND
Plaintiffs Raymond Wierzbic (“Raymond”), his wife Bernice Wierzbic (“Bernice”),
their son Brian Wierzbic (“Brian”), and their daughter Angelene Wierzbic (“Angelene”),
commenced this by filing on September 27, 2013, the Complaint, pursuant to 42 U.S.C.
§ 1983, against Defendants County of Erie (“County”), Erie County Sheriff’s Department
(“Sheriff’s Department”), Erie County Sheriff Timothy Howard (“Sheriff Howard”), Erie
County Deputy Sheriffs Michael Hoock (“Deputy Hoock”), Jason Weiss (“Deputy
Weiss”), Thomas Was (“Deputy Was”), and James Flowers (“Deputy Flowers”)
(together, “County Defendants”), and the East Aurora Police Department (“East Aurora
Police”), East Aurora Police Chief Ronald Krowka (“Police Chief Krowka”), and East
Aurora Police Officer Robert Braeuner (“Officer Brauener”) (together, “East Aurora
Defendants”). The Complaint sets forth federal civil rights claims for (1) excessive
force; (2) malicious prosecution; (3) failure to intervene; (4) conspiracy; (5) First
Amendment violation; (6) Fifth Amendment violations; (7) false arrest; and (8) false
imprisonment, and state law claims for (1) false arrest; (2) false imprisonment; (3)
assault; (4) battery; (5) intentional infliction of emotional distress; (6) negligent hiring
and retention; and (7) negligent training and supervision. Plaintiffs seek in connection
with their claims compensatory damages, punitive damages, and an award of
reasonable attorney fees under 42 U.S.C. § 1988.
2
After discovery was complete, motions for summary judgment were filed by East
Aurora Defendants (Dkt. 81) (“East Aurora Defendants’ summary judgment motion”),
County Defendants (Dkt. 83) (“County Defendants’ summary judgment motion”), and
Plaintiffs (Dkt. 84) (“Plaintiffs’ summary judgment motion”). In a Decision and Order
filed January 25, 2018 (Dkt. 98) (“Summary Judgment D&O”), District Judge William M.
Skretny granted East Aurora Defendants’ summary judgment motion and terminated the
East Aurora Defendants as parties, denied Plaintiffs’ summary judgment motion, and
granted in part and denied in part the County Defendants’ summary judgment motion
dismissing the County as a party, dismissing all claims against remaining Defendants in
their official capacities, dismissing the state law claims against Defendants in their
individual capacities except with regard to Defendants Sheriff Howard and Deputy
Hoock, dismissing all other claims as against Sheriff Howard, dismissing Plaintiff’s First
and Fifth Amendment claims, holding no punitive damages claim could be brought
against any Defendant in his official capacity, and deeming the Complaint amended to
include a New York common law claim for trespass which was could be maintained
against only Defendants Sheriff Howard and Deputy Hoock (“Defendants”). Summary
Judgment D&O at 32-33. With regard to the trespass claim, Judge Skretny further
found all the necessary elements to hold Deputy Hoock liable for trespass except for
sufficient proof that Plaintiff were owners and possessors of the subject premises at the
time of the incident. Summary Judgment D&O at 31-32.
After the parties consented to proceed before the undersigned (Dkt. 101), trial
was scheduled with jury selection to commence November 5, 2018 (Dkt. 107).
Defendants filed two in limine motions including their first, filed November 1, 2018,
3
seeking an order precluding at trial Plaintiffs from (1) presenting evidence of
indemnification of Defendant Deputy Sheriffs, (2) presenting evidence of or referring to
the fact that the County was once a Defendant to this action, (3) referring to Defendants’
counsel as County Attorneys, and (4) suggesting the jury award a specific dollar amount
as damages, (Dkt. 115) (“Defendants’ First In Limine Motion”), and their second, filed
November 2, 2018, seeking a court order allowing Defendants to assert during trial a
qualified immunity defense and a justification defense to the state trespass claim. (Dkt.
119) (“Defendants’ Second In Limine Motion”). On November 2, 2018, Plaintiffs filed an
in limine motion seeking a court order with regard to the trespass claim that only the
question of damages be submitted to the jury with directions the jury can award
unlimited damages, and clarifying that Bernice Wierzbic asserted claims for trespass,
false arrest, excessive force, malicious prosecution and intentional infliction of emotional
distress. (Dkt. 118) (“Plaintiffs’ In Limine Motion”) (collectively, “the In Limine Motions”).
Trial commenced on November 5, 2018, with the selection of eight jurors, and
continued through November 8, 2018, with Plaintiffs calling as witnesses Brian,
Raymond, Angelene, and Bernice Wierzbic, and Deputy Hoock, Deputy Flowers, and
Deputy Weiss. 1 At the conclusion of Plaintiffs’ direct examination of Defendant Deputy
Hoock, Plaintiffs moved pursuant to Fed.R.Civ.P. 50(a) for a directed verdict on the New
York common law trespass claim, TR3 at 138-49, which the undersigned denied. Id. at
152. After the close of all proof, Defendants moved pursuant to Fed.R.Civ.P. 50(a) for
judgment as a matter of law on their affirmative defense of qualified immunity, with the
1
References to the November 6, 7, and 8, 2018 trial proceedings are to pages of the specific date’s trial
transcript, copies of which are filed, respectively, as Dkts. 132 (“TR1 at __”)), 133 (“TR2 at __”), and 134
(“TR3 at __”).
4
undersigned reserving decision pending the jury’s determination on the substantive
claims and special interrogatories. Dkt. 135. Prior to submitting the case to the jury, the
undersigned, upon Defendants’ motion, directed verdict in favor of Defendants on
Plaintiffs’ malicious prosecution claim, November 9, 2018 Minute Entry (Dkt. 128),
Plaintiffs voluntarily withdrew all New York common law claims except for trespass, and
all federal claims except for unlawful arrest and excessive force, as well as all claims
against Defendants Deputy Flowers, Deputy Weiss, and Deputy Was, leaving only the
New York common law trespass claim and the federal civil rights claims for unlawful
arrest and excessive force as against only Defendants Deputy Hoock and Sheriff
Howard for whom any liability would be in his official capacity and derivative of Deputy
Hoock’s liability pursuant to the theory of respondeat superior.
The jury commenced deliberations on November 9, 2018, and continued on
November 13, 2018, when the jury indicated they were deadlocked and unable to reach
a verdict on any of the claims as against either Defendant. The court then declared,
with the parties’ concurrence, a mistrial and dismissed the jury (Dkt. 129).
Intending to retry the case, a pretrial conference to set retrial dates was
scheduled first for December 17, 2018 (Dkt. 130), and then adjourned to January 28,
2019 (Dkt. 131), and further adjourned on January 18, 2019 (Dkt. 140), pending
resolution of Defendants’ instant motion for judgment as a matter of law, filed December
11, 2011 (Dkt. 136) (“Defendants’ Rule 50(b) Motion”), attaching the Attorney Affidavit of
Jennifer C. Persico, Esq. (Dkt. 136-1) (“Persico Affidavit”), and Defendants’ Motion for
Judgment as a Matter of Law Pursuant to Rule 50 of the Federal Rules of Civil
Procedure (Dkt. 136-2) (“Defendants’ Memorandum”). On January 17, 2019, Plaintiffs
5
filed the Memorandum in Opposition to Defendants’ Motion for Rule 50 Judgment (Dkt.
140) (“Plaintiffs’ Response”). On February 1, 2019, Defendants filed Defendants’
Motion in Reply to Plaintiffs’ Opposition to Defendants’ Motion for Judgment as a Matter
of Law, Pursuant to Rule 50 of the Federal Rules of Civil Procedure (Dkt. 142)
(“Defendants’ Reply”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ Rule 50(b) Motion is GRANTED in part, and
DENIED in part; the In Limine Motions are DISMISSED as moot.
FACTS 2
On July 2, 2012, Defendant Deputy Erie County Sheriff Michael Hoock (“Hoock”),
was asked by his supervisor for the Erie County Sheriff civil process division, to serve in
regard to a collections action against Plaintiff Raymond Wierzbic (“Raymond”), a
subpoena duces tecum (“the subpoena”), on Raymond. TR3 at 54-55, 73-75. 3 Hoock
had received training with regard to process serving, including the difference between
process serving and trespassing, which could entail violating someone’s civil rights, TR3
at 56-67, a subject that is covered in the Erie County Sheriff’s Department Civil Process
Division’s manual, parts of which Hoock testified he has read, TR 57-60, including the
provision that there is no way to compel a person to be served to identify himself. Id. at
100-01. The subpoena contained two addresses for Raymond, including 5734 Burton
Road (“the Burton Road address”) which was listed as Raymond’s business address,
and 49 Willis Road (“the Willis Road premises”), which was listed as Raymond’s
residential address. TR3 at 76-79. Because the subpoena was returnable on August 3,
2
Taken from the trial transcript.
The Sheriff’s Civil Division, in providing service of process, functions like a private process server by
charging a fee for service.
3
6
2012, the subpoena did not have to be served until July 23, 2012, yet Hoock decided to
serve the subpoena on his way home from work, prior to the start of Hoock’s holiday
weekend, at the Willis Road premises which was the first address listed on the
subpoena. TR 3 at 73-79. Although the subpoena indicated it was to be personally
served on Raymond, Hoock confirmed he had the option, under state law, of personally
delivering the subpoena either to Raymond, or to someone of suitable age and
discretion at Raymond’s address as substitute service. Id. at 75-78. According to
Hoock, when serving civil process, he did not routinely ask the person for proof of
ownership of the property, such as a deed, or even for identification but, rather, only for
such pedigree information as the person’s name, date of birth, address, height, and
weight. Id. at 77.
Hoock, dressed in his Sheriff uniform complete with his badge and service
firearm, traveled during the middle afternoon on Jul 2, 2012, in his Sheriff patrol vehicle
to the Willis Road premises. Located on the Willis Road premises were a house, a
carport, a barn, some farm equipment including, inter alia, a tractor, and fields for
planting. A driveway or road led from the roadway of Willis Road through the property
past the house, carport, and barn to the fields. Brian, Raymond, and Bernice were at
the Willis Road premises preparing to plant 4,000 tomato plants from which they
intended to harvest tomatoes to sell at local farmers markets. It was essential that the
plants be placed into the ground that day so that they could be watered; otherwise, the
plants were likely to perish in the summer heat. Hoock parked the patrol vehicle at the
side of the road near the end of the driveway, exited the vehicle and walked up the
driveway where Hoock observed two individuals including Brian who walked toward
7
Hoock, and Raymond who was working nearby on a tractor. TR1 at 113; TR3 at 88-89.
Hoock inquired whether Raymond Wierzbic was present, TR3 at 89-90, and Brian
Wierzbic (“Brian”), responded that Raymond did not live there, and at least four and
possibly five times asked Hoock to give him the papers for Raymond and leave. TR1 at
9-11; TR3 at 91. Hoock did not observe Raymond with any pliers in his hand at that
time. Id. While Hoock was speaking with Brian, Bernice was close enough to overhear
the conversation, but did not think there was any problem and went into the house to
use the bathroom and was surprised that Hoock was still there when she emerged from
the house a few minutes later. TR3 at 17-20.
Rather than giving Brian the papers and leaving the premises, or just leaving the
premises with the papers, Hoock insisted he needed to determine who Raymond was,
and demanded to see Brian’s identification. Whether Brian provided Hoock with his
identification at that time is disputed, but it was not until after Brian had ordered Hoock
off the property several times that Hoock observed Raymond, then at the tractor
approximately 10 yards away, pick up a pair of large, “Channellock” pliers (“the pliers”),
wave the pliers at head-level, shouting for Hoock to leave the property. TR3 at 94.
Believing his safety was being threatened, Hoock advised Brian and Raymond they
were under arrest, and Raymond stalked off further onto the Willis Road premises,
away from Hoock, carrying the pliers, and swearing at Hoock.
Hoock followed Raymond, and Brian followed Hoock, as Raymond, who
continued to wave the pliers and yell expletives, led the three about 350 feet deeper
onto the property, tossing the pliers into an open toolbox lying on the floor of a barn as
he walked past it. Eventually, Hoock increased his speed and caught up to Raymond,
8
firing a can of pepper spray at Raymond in an attempt to subdue Raymond and gain his
compliance. The pepper spray cannister, however, was nearly empty and it is disputed
whether Raymond was hit in the face with any of the pepper spray but Raymond
became more confrontational and initiated physical contact with Hoock, TR3 at 208-09,
and Brian walked toward the house seeking water to wash the pepper spray residue
from Raymond, leaving Raymond with Hoock who then engaged in a physical
altercation. TR1 at 36, 42, 44, with Brian eventually joining Raymond in the fracas.
During the melee, a suggestion was made to call the East Aurora police for assistance,
with either Brian or Raymond handing his cell phone to Bernice who was then back
outside and standing nearby. The situation calmed a bit while Bernice placed the
telephone call, and Brian, Raymond, and Hoock walked back toward the road and stood
in the area of the carport, where they soon heard sirens.
Raymond testified that he, Brian and Hoock were standing in the area of the
carport at the Willis Road premises, and when the three additional law enforcement
officers, including Deputy Sheriff Flowers (“Deputy Flowers”), Deputy Sheriff Weiss
(“Deputy Weiss”), and East Aurora Police Officer Braeuner (“Officer Braeuner”), arrived
at the scene, Hoock grabbed Raymond by the throat and started punching Raymond in
the back, and Raymond, who is huskier than Hoock, responded by flipping Hoock onto
his back and using his right arm to place Hoock in a headlock on the ground. TR2 at
129-31, 133. At this point, Bernice entered the fracas, pushing or bumping into Officer
Braeuner in an attempt to get him to help Raymond, but Braeuner responded by placing
Bernice under arrest.
9
Meanwhile Hoock and Raymond continued struggling with each other on the
ground with Raymond having placed Hoock in a headlock. TR3 at 196, 199. Deputy
Weiss was in the process of taking Brian into custody, id., and Hoock observed Deputy
Flowers nearby who, in response to Hoock’s request, pepper-sprayed Raymond. Id. at
196-97. Raymond, in response to the pepper spray, released Hoock from the headlock
and complied with the officers, allowing Flowers and Hoock to handcuff Raymond
behind his back, using two sets of handcuffs to accommodate Raymond’s large arms.
TR3 at 203. Because the pepper spray residue continued to create a burning
sensation, Hoock used a garden hose, that was not fitted with a spray nozzle, from the
nearby tractor to apply water Raymond’s forehead and eyes while Hoock also called for
an ambulance to bring a decontamination kit to rinse Raymond’s eyes of the pepper
spray. Id. at 200-01. Hoock explained that when applied, water provides relief from the
pepper spray, but does not wash away the residue such that as soon as the water is
removed, the burning sensation returns. Id. at 201-02. Raymond maintains the force of
the water in his face resulted in a drowning sensation. TR2 at 154. Meanwhile, Deputy
Weiss arrested Brian, and Officer Braeuner arrested Bernice.
Raymond was charged with violations of New York Penal Law (“N.Y. Penal Law”)
§§ 205.30 (resisting arrest), 195.05 (obstructing government administration), 120.15
(third degree menacing), and 240.26 (second degree harassment). Brian was charged
with violations of N.Y. Penal Law §§ 120.001 (third degree assault), 195.05 (obstructing
government administration), and 205.30 (resisting arrest). Bernice was charged with
violations of N.Y. Penal Law §§ 205.30 (resisting arrest), and 195.05 (obstructing
government administration).
10
Raymond was taken to Erie County Medical Center (“ECMC”) for treatment in
connection with his complaints of breathing difficulty and blurry vision. AR at 156-57.
Meanwhile, Bernice and Brian were transported to the Erie County Sheriff’s sub-station
at 1600 Bowen Road in Elma (“the sub-station”) where, at 6:30 P.M. on July 2, 2012,
Hoock served Brian with the subpoena. TR1 at 58-59, 61; TR3 at 108-12, 183.
Raymond, Bernice, and Brian were then taken to the Erie County Holding Center
(“ECHC”), in Buffalo, New York, where they were held until their arraignment before
Aurora Town Justice Jeffrey P. Markello (“Justice Markello”), in Aurora Town Court the
following evening, July 3, 2012, and the three were released on bail. On June 12 and
13, 2013, Justice Markello presided over a bench trial, following which Raymond was
convicted on all charges, Brian was convicted of obstructing governmental
administration, and Bernice was acquitted of all charges. On December 4, 2013,
Raymond and Brian each were sentenced to a conditional discharge, fined $ 750, and
ordered to perform 20 hours community service. On September 30, 2014, Erie County
Court Judge Michael F. Pietruszka (“Judge Pietruszka”), on Raymond and Brian’s
appeal, reversed the convictions.
DISCUSSION
1.
Remaining Claims
Following Plaintiffs’ withdrawal at trial of all claims against formed Defendant
Deputies Was, Weiss, and Flowers, as well as most of the state law claims save for
trespass, and several federal civil rights claims, left before the court as Defendants are
Sheriff Howard and Deputy Hoock. The claims asserted include Plaintiffs’ state law
claims for trespass, and Plaintiffs Raymond and Brian’s federal Fourth Amendment
11
claims for false arrest and excessive force. Further, although all Plaintiffs assert their
various claims against both Defendants, any liability as against Sheriff Howard, who
was not personally involved in any of the alleged unlawful conduct, would necessarily
be derivative of unlawful conduct by Deputy Hoock as the Sheriff’s employee in a civil
matter by virtue of respondeat superior.
2.
Judgment as a Matter of Law
“‘Judgment as a matter of law may not properly be granted under Rule 50 unless
the evidence, viewed in the light most favorable to the opposing party, is insufficient to
permit a reasonable juror to find in his favor.’” Stevens v. Rite Aid Corporation, 851
F.3d 224, 228 (2d Cir. 2017) (quoting Galdieri-Ambrosini v. National Realty &
Development Corp., 136 F.3d 276, 289 (2d Cir. 1998)) (brackets omitted). A rule 50(b)
motion may be granted “only if the court, viewing the evidence in the light most
favorable to the non-movant, concludes that a reasonable juror would have been
compelled to accept the view of the moving party.” Cash v. County of Erie, 654 F.3d
324, 333 (2d Cir. 2011) (internal quotation marks and citation omitted). A Rule 50(b)
motion for judgment as a matter of law is decided according to the same standard as a
motion for summary judgment under Rule 56(f). This Is Me, Inc. v. Taylor, 157 F.3d
139, 142 (2d Cir. 1998) (same standard applies to pretrial motion for summary judgment
and motion for judgment as a matter of law during or after trial; evidence must be such
that a reasonable juror would have been compelled to accept the asserted position). In
ruling on a motion for judgment as a matter of law, “[t]he motion will be granted only if
(1) there is a complete absence of probative evidence to support a verdict for the nonmovant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that
12
reasonable and fair minded men in the exercise of impartial judgment could not arrive at
a verdict against him.” Noonan v. Midland Capital Corp., 453 F.2d 459, 461 (2d Cir.
1972), cert. denied, 406 U.S. 945 (1972).
A Rule 50(a) motion made before submission of the case to the jury is a
necessary predicate to a post-trial motion pursuant to Rule 50(b), 4 Bracey v. Board of
Education of City of Bridgeport, 368 F.3d 108, 117 (2d Cir. 2004), which essentially is a
renewal of a Rule 50(a) motion after an unfavorable verdict on the grounds specifically
raised in the Rule 50(a) motion, Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir.
2001), and, as such, is “limited to those grounds that were specifically raised in the prior
[Rule 50(a) motion]”. 5 Galdieri-Ambrosini, 136 F.3d at 286. Relief from this specificity
requirement is, however, available “where necessary to avoid manifest injustice,” and
will not be “woodenly appl[ied] merely to attain an unwarranted triumph of form over
substance.” Doctor’s Associates, Inc. v. Weible, 92 F.3d 108, 113 (2d Cir. 1996)
(internal quotations omitted). Although a Rule 50(b) motion for judgment as a matter of
law is decided according to the same standard as a Rule 56(f) summary judgment
moiton, This Is Me, Inc., 157 F.3d at 142, a previous denial of summary judgment does
not bar the district court from later granting judgment as a matter of law in favor of the
summary judgment movant. Williams v. County of Westchester, 171 F.3d 98, 102 (2d
Cir. 1999) (“Williams”) (affirming district court’s granting Rule 50(b) judgment as a
matter of law in favor of same party for whom summary judgment motion was earlier
denied). In Williams, the Second Circuit explained that a summary judgment decision is
4 Rule 50(a) requires a motion for judgment as a matter of law be made at trial before the case is
submitted to the jury and “shall specify the judgment sought and the law and facts that entitle the movant
to the judgment.” Fed.R.Civ.P. 50(a)(2).
5 Unless otherwise specified, bracketed material has been added.
13
interlocutory and, as such, “remain[s] subject to modification or adjustment prior to the
entry of a final judgment adjudicating the claims to which they pertain.” Id. at 102 (citing
Fed.R.Civ.P. 54(b) and cases). Accordingly, when presented with a motion for
judgment as a matter of law at trial, despite any judicial misgivings about the sufficiency
of the evidence to support a verdict, the preferred procedure in the interest of judicial
efficiency is to allow the case to be decided by the jury in the first instance and if the
court believes the verdict reached by the jury is irrational, i.e., unsupportable given the
evidence at trial, the court may then grant judgment as a matter of law. Id. Should the
matter later be reversed on appeal, the court can efficiently conclude the case simply by
reinstating the jury’s verdict without any need for retrial. Id.
Although in the instant case, the jury did not return a verdict but was deadlocked,
judgment as a matter of law has withstood scrutiny by the Second Circuit when granted
following a deadlocked trial. See Noonan, 453 F.2d at 462-63 (affirming district court’s
granting judgment as a matter of law in action that was tried before jury twice, both
times resulting in a deadlocked jury, determining that the juries’ inability to reach a
verdict did not mean the actual disagreement preventing a verdict was fair and
reasonable based on the evidence presented at trial). Accordingly, that the jury did not
reach a verdict on any of Plaintiffs’ claims does not preclude granting judgment as a
matter of law.
In their instant motion, Defendants assert they are renewing and seeking the
same relief as in their trial motion for judgment as a matter of law, Defendants’
Memorandum at 3, arguing Defendant Deputy Hoock either was not personally involved
in or is qualifiedly immune from liability on both remaining civil rights claims, including
14
false arrest, id. at 4-12, and excessive force, id. at 12-18, and with regard to the
trespass claims, that Hoock’s presence at the Willis Road premises was justified by
Hoock’s privilege as a process server, id. at 19-22, and neither Raymond nor Bernice
had a sufficient interest in the subject premises to support their trespass claims as
required by New York law. Id. at 22-23. In opposition, Plaintiffs argue Deputy Hoock is
not entitled to qualified immunity on the false arrest and excessive force claims because
it was not reasonable for Hoock to remain at the Willis Road premises once Brian
ordered him off, Plaintiffs’ Response at 4-9, Hoock was without probable cause to arrest
Raymond, id. at 9-11, Hoock seized Brian, id. at 11-13, and Raymond, id. at 13-16, the
illegality of the seizures establishes that all force used against Raymond and Brian to
effect such arrest was excessive, id. at 16, and that the trespass claims should not be
dismissed because Defendant Hoock’s own trial testimony establishes Hoock should
have left the premises as soon as Brian ordered Hoock off the property, id. at 16-19,
asserting each of the Plaintiffs has a viable trespass claim. Id. at 18-23. In further
support of their motion, Defendants maintain Plaintiffs fail to reference, as is their
burden, any testimony supporting the unlawful seizure claims of Raymond and Brian,
Defendants’ Reply at 2-3, Plaintiffs confuse the applicable probable cause standard with
Defendants’ qualified immunity defense pursuant to which Plaintiffs’ argument that
probable cause to arrest Raymond and Brian was lacking is irrelevant so long as Hoock
arguably had probable cause, id., at 4-7, fail to dispute Defendants’ asserted facts and
arguments regarding the excessive force claims, id. at 7-8, and should grant
Defendants judgment as a matter of law on the qualified immunity defense because
Hoock’s status as a process server vested Hoock with a privilege to remain on the
15
property while attempting to determine the identity of Brian and Raymond to effect
proper service of the subpoena, id. at 8-9, and both Raymond and Bernice lack standing
to assert their trespass claims. Id. at 9-10.
3.
New York Common Law Trespass Claim
Although addressed last by Defendants, the court considers Plaintiffs’ claims in
chronological order as they arose during the scenario and, thus, begins with the
trespass claim. Preliminarily, the court addresses a procedural matter overlooked by
the parties. In particular, after Hoock’s trial testimony, Plaintiffs moved pursuant to Rule
50(a) for judgment as a matter of law on the New York common law trespass claims,
TR3 at 138-49, which the court denied, TR3 at 152, but following trial, Plaintiffs did not
renew the motion pursuant to Rule 50(b). Defendants, following close of all proof,
moved pursuant to Rule 50(a) for judgment as a matter of law only on their affirmative
defense of qualified immunity, on which motion the undersigned reserved decision
pending the jury’s determination on the substantive claims and special interrogatories,
Dkt. 135, passim, but because the jury deadlocked on the first claim, i.e., the trespass
claim, the jury never reached the other claims nor the special interrogatories that were
intended to assist in resolving the qualified immunity affirmative defense. Despite not
seeking in connection with their Rule 50(a) motion judgment as a matter of law on
Plaintiffs’ trespass claim, Defendants, in their instant motion pursuant to Rule 50(b),
seek judgment as a matter of law not only on their qualified immunity defense, thus
renewing their Rule 50(a) motion made at trial, but also on the New York common law
trespass claim on which Defendants did not previously move pursuant to Rule 50(a).
Generally, Defendants’ failure to include the common law trespass claim in their Rule
16
50(a) motion would prevent the court from considering the claim with regard to
Defendants’ Rule 50(b) motion, Bracey v. Board of Education of City of Bridgeport, 368
F.3d 108, 117 (2d Cir. 2004), which essentially is a renewal of a Rule 50(a) motion,
Lambert v. Genesee Hospital, 10 F.3d 46, 53-54 (2d Cir. 1993), and, as such, is “limited
to those grounds that were specifically raised in the prior [Rule 50(a) motion]”. GaldieriAmbrosini, 136 F.3d at 286. In the instant case, however, Plaintiffs’ earlier summary
judgment motion was premised solely on their trespass claim, see Dkt. 84-10 at 3-5
(Plaintiffs’ summary judgment motion memorandum of law), which Defendants opposed
on the basis that in neither the Complaint nor in Plaintiffs’ interrogatory responses did
Plaintiffs mention any trespass claim, see Dkt. 89-5 (Defendants’ memorandum
opposing Plaintiffs’ summary judgment motion) at 3-6, and even if such claim had been
pleaded, Plaintiffs could not establish it on the merits, id. at 7-10, with Judge Skretny
holding that although Plaintiffs did not specifically plead a trespass claim, such claim
could reasonably be inferred from the Complaint and other papers filed in this action,
deeming the Complaint amended to include the trespass claim, Summary Judgment
D&O at 26-28, and stating the trespass claim could have been granted in favor of
Plaintiffs but for Plaintiffs’ failure to prove an essential element of their trespass claim,
i.e., ownership and possession of the Willis Road premises. Id. at 31. Further,
Plaintiffs’ Rule 50(a) motion was limited to their trespass claim. TR3 at 138-49. Nor
have Plaintiffs in arguing in opposition to Defendants’ Rule 50(b) motion asserted that
Defendants’ failure to raise the trespass claim in Defendants’ prior Rule 50(a) motion
bars Defendants from raising it in their instant Rule 50(b) motion. Significantly, the
purpose of requiring a Rule 50(a) movant to articulate the grounds on which the motion
17
for judgment as a matter of law is sought “‘is to give the other party an opportunity to
cure the defects in proof that might otherwise preclude him from taking the case to the
jury.’” Galdieri-Ambrosini, 136 F.3d at 286 (quoting Baskin v. Hawley, 807 F.2d 1120,
1134 (2d Cir. 1986)). “‘This articulation is necessary . . . so that the responding party
may seek to correct any overlooked deficiencies in the proof.’” Id. (quoting Fed.R.Civ.P.
50 Advisory Committee Note (1991)). Accordingly, the predicate Rule 50(a) motion
“must at least identify the specific element that the defendant contends is insufficiently
supported.” Id. at 286-87 (citing Cruz v. Local Union No. 3, 34 F.3d 1148, 1155 (2d Cir.
1994), and Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993)). When considering the
sufficiency of the Rule 50(a) motion’s specificity, the ultimate question for the court is
whether the motion by itself, or in the context of the action, sufficiently alerted the
opposing party to the supposed deficiencies in proof. See id. at 287 (determining that
although defendant employer’s Rule 50(a) motion did not mention retaliation,
defendant’s counsel indicated in ensuing colloquy that retaliation claim was included in
motion on same grounds as advanced by the defendant employer on the substantive
employment discrimination claim).
In the instant case, although the instant Rule 50(b) motion was filed by
Defendants, whose own prior Rule 50(a) motion was limited to qualified immunity on the
civil rights claims, Plaintiffs’ motions pursuant to Rule 50(a) and for summary judgment,
were asserted with regard to only their trespass claim, with Defendants’ response to
summary judgment squarely addressing the merits of such claim, and Judge Skretny
declining to grant summary judgment on it only because Plaintiffs had not established
ownership and possession of the Willis Road premises as an element for a common law
18
trespass claim. Under these circumstances, albeit unusual and somewhat procedurally
flawed, it cannot be said that addressing the trespass claim in connection with
Defendants’ Rule 50(b) motion for judgment as a matter of law will result in depriving
any party of the opportunity to cure any defect in proof, which is what the renewal
concept of Rule 50(b) is intended to avoid, Gladieri-Ambrosini, 136 F.3d at 286-87, and
is consistent with the direction of Fed.R.Civ.P. 1 (“Rule 1”), that the Federal Rules of
Civil Procedure “should be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Simply stated, Plaintiffs’ have from the outset been made aware of the
deficiencies in Plaintiffs’ trespass claim by Defendants’ opposition such that Plaintiffs
had more than an ample opportunity to provide sufficient evidence to sustain this claim.
Accordingly, in ruling on Defendants’ Rule 50(b) motion, the court considers whether to
grant judgment as a matter of law on Plaintiffs’ New York common law trespass claim
despite Defendants’ failure to include it in their prior Rule 50(a) motion.
Under New York common law, “trespass is an intentional entry onto the property
of another without justification or permission.” Woodhull v. Town of Riverhead, 849
N.Y.S.2d 79, 81 (2d Dep’t 2007), lv. to app. denied, 889 N.E.2d 80 (N.Y. 2008). An
entry may constitute a trespass even if innocently made or by mistake. Hill v. Raziano,
880 N.Y.S.2d 173, 175 (2d Dep’t 2009) (citing cases). Exceptions to trespass include,
inter alia, entry for service of process, but even then, a refusal to leave the premises
after such privilege is revoked by an owner or someone in lawful possession renders
the putative process server a trespasser. See Rager v. McCloskey, 111 N.E.2d 214,
216 (N.Y. 1953) (holding complaint alleging defendant deputy sheriff entered plaintiff’s
19
property to serve process and, despite repeated requests, refused to leave upon
learning plaintiff was not there, stated claim for common law trespass) (citing
Restatement, Torts, § 158; Prosser on Torts, p. 89). Defendants argue that New York
courts recognize that the justification or privilege process servers enjoy to serve papers
includes “‘such force as is necessary to overcome any resistance [met] in the service of
the subpoena.’” Defendants’ Memorandum at 19 (quoting Hager v. Danforth, 20 Barb.
16, 18 (N.Y. Sup. Ct. Gen. Term 1854) (“Hager”) (holding process server who,
uninvited, peacefully enters another’s house through an open outer door, is lawfully
present at the premises and may use any force necessary to overcome the occupant’s
resistance to the service)). In Rager v. McCloskey, 111 N.E.2d 214, 216-17 (N.Y. 1953)
(“Rager”), however, the New York Court of Appeals implicitly rejected Hager. Rager,
111 N.E.2d at 216-17 (citing Adams v. Rivers, 11 Barb. 390, 397 (N.Y. Sup. Ct. Gen.
Term 1851) (“The defendant had no right to be upon the plaintiff’s piazza after he was
ordered to depart.”); and People ex rel. Paul v. Warden of City Prison of City of New
York, 74 N.Y.S.2d 438, 439 (N.Y. Sup. Ct. Kings Cty. 1947) (remarking that the door to
a house “is a tacit invitation to those who have lawful business” to stand before it, ring
the doorbell, and announce themselves, and such persons “are not trespassers and do
not become such until they overstay their welcome and ignore a request to leave.”)). In
Rager, the plaintiff, an attorney, brought a claim for trespass against the local sheriff
and a deputy sheriff alleging the defendant deputy sheriff, in the course of attempting to
serve process on the plaintiff at the plaintiff’s law office, entered the law office but, not
finding the plaintiff there, and despite repeated requests by other employees to leave,
engaged in “violent efforts” including opening doors to the interior offices, forcibly
20
wrenching apart glass partitions to the typists’ room, accompanied by a barrage of
profane and abusive language as well as threats of jail if plaintiff’s employees did not
produce the plaintiff. Rager, 111 N.E.2d at 216. The defendant deputy ignored the
plaintiff’s employees’ requests to leave, remaining at the law office until he was
removed by the police. Id. Under these circumstances, the Court of Appeals held
although the defendant’s original entry to serve process may have been lawful, the
allegations that despite repeated requests to leave the defendant remained “for a not
inconsiderable period” were sufficient to allege a trespass claim both against the
defendant deputy, id. at 216-17, as well as the defendant sheriff through respondeat
superior. Id. at 217.
Similar to the instant case, in Butler v. Ratner, 662 N.Y.S.2d 696 (City Ct. City of
New Rochelle, 1997) (“Butler”), the landowner plaintiff moved for summary judgment on
a trespass claim asserted against the defendant process server, not a peace officer,
who despite having previously been told three times not to enter the plaintiff’s property
did so anyway in an attempt to serve the plaintiff with papers. Butler, 662 N.Y.S.2d at
696. The defendant maintained that because the papers the defendant attempted to
serve pertained to a legal action commenced by the plaintiff, the defendant was
authorized to enter the plaintiff’s property to serve the papers and the plaintiff was
without any legal basis to oppose the service. Id. at 696-97. The court held the mere
fact that New York’s Civil Practice Laws and Rules 2241(b) permitted the manner of
service the defendant was attempting did not create a legal right to trespass, particularly
where other methods of service were available. Id. at 697-98. Similarly, in the instant
case, although Defendant Deputy Hoock’s initial entry onto the subject Willis Road
21
premises was privileged because Hoock, despite his employment as a law enforcement
officer, was acting in his capacity as a process server for the Sheriff’s civil department,
once Brian directed Hoock to leave the premises, the process serving privilege was
revoked and no longer shielded Hoock from liability as a trespasser. Although
Defendants attempt to vest Hoock’s decision to remain on the Willis Road premises with
additional justification as a law enforcement officer upon viewing Raymond gesturing
with large pliers and directing verbal threats at expletives at Hoock, Defendants’
Memorandum at 21-22, crucially, Hoock’s own testimony at trial was that Brian told
Hoock more than once, and possibly more than five times to leave before Hoock
observed Raymond with pliers. TR3 at 91. It is simply implausible that Hoock, upon
being told five times to leave the premises, and whose process serving training included
distinguishing between serving process and trespassing, could have believed his
continued presence at the premises remained within the privilege for service of process
and no reasonable juror, on this evidence, could find otherwise. This conclusion also is
consistent with Judge Skretny’s determination on summary judgment that but for
establishing the element of ownership and possession of the Willis Road premises,
summary judgment could have been granted to Plaintiffs on this claim. See Summary
Judgment D&O at 33-34. 6
The instant motion for judgment as a matter of law was filed by Defendants, not
Plaintiffs. Nevertheless, because as discussed, Discussion, supra, at 12-13, the
standard for deciding a Rule 50(b) motion is the same as for summary judgment, the
court is permitted to grant summary judgment in favor of the non-movant, so long as the
6
A careful reading of the Summary Judgment D&O establishes there was also, at that time, some
confusion as to the premises’ correct address, since established as 49 Willis Road.
22
party against whom judgment is entered has been provided with notice and a
reasonable time to respond. Fed.R.Civ.P. 56(f)(1) (“After giving notice and a
reasonable time to respond, the court may . . . grant summary judgment for a
nonmovant . . . .”). Prior to granting summary judgment in favor of a non-movant, the
court must assure “that the party against whom summary judgment is rendered has had
a full and fair opportunity to meet the proposition that there is no genuine issue of
material fact to be tried.” Priestly v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011)
(observing court may grant summary judgment sua sponte after determining “the party
against whom summary judgment is rendered has had a full and fair opportunity to meet
the proposition that there is no genuine issue of material fact to be tried.” (quoting
Schwan-Stabilo Cosmetics GmbH & Co. v. Pacificlink Int’l Corp., 401 F.3d 28, 33 (2d
Cir. 2005))). Before granting summary judgment sua sponte in favor of the non-movant,
“‘[d]iscovery must either have been completed, or it must be clear that further discovery
would be of no benefit. The record must, therefore, reflect the losing party’s inability to
enhance the evidence supporting its position and the winning party’s entitlement to
judgment.’” Federal Ins. Co. v. Zurich American Ins. Co., 445 Fed.Appx. 405, 407 (2d
Cir. 2011) (quoting Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996)). Furthermore,
as discussed, Discussion, supra, at 19, Rule 1 requires the court and the parties
construe, administer, and employ the Federal Rules of Civil Procedure “to secure the
just, speedy, and inexpensive determination of every action and proceeding.” Under the
instant circumstances, the court finds that granting judgment as a matter of law in favor
of Plaintiffs on the trespass claim accords with both Rule 1 and Rule 50(b).
23
Despite finding Hoock committed a trespass upon the Willis Road premises, the
question remains as to which Plaintiffs may recover for such trespass and in what
amount. Significantly, trespass is an injury to possession and, as such, an action for
trespass may be maintained only by one in actual possession. Gowanus Industrial
Park, Inc. v. Amerada Hess Corp., 2003 WL 22076651, at * 12 (S.D.N.Y. Sept. 5, 2003)
(citing Miller v. Long Island R. Co., 71 N.Y. 380, 383 (N.Y. 1877) (“The possession,
unaccompanied with paper title, requisite to furnish the presumption of ownership
sufficient to maintain this action must be actual; nothing less will answer.”)). A trespass
claim under New York common law requires “an intentional entry onto the land of
another without justification or permission.” Marone v. Kally, 971 N.Y.S.2d 324, 327 (2d
Dep’t 2013) (citation omitted). Trespass “involves the invasion of a person’s interest in
the exclusive possession of land,” Copart Indus., Inv. v. Consol. Edison Co. of N.Y., 362
N.E.2d 968, 972 (N.Y. 1977), because “possession, not ownership, lies at the root of an
action for trespass.” Meadow Point Properties, Inc. v. Nick Mazzaferro & S ons, 219
N.Y.S.2d 908, 909 (Sup. Ct. Suffolk Co., 1961). As such, “[t]respass being an injury to
possession, an action may be maintained therefor by plaintiff as a lessee in actual
possession even against his landlord.” Steinfeld v. Morris, 16 N.Y.S.2d 155, 155 (1st
Dep’t 1939) (citing Domhoff v. Paul Stier, Inc., 141 N.Y.S.2d 825, 826 (2d Dep’t 1913)).
See also Beardslee v. New Berlin Light & Power Co., 100 N.E. 434, 437 (N.Y. 1912)
(“As against one in possession, an intruder must justify his invasion by virtue of his own
title, not by the weakness of the defendant’s title. . . . As against a trespasser, it would
be immaterial that the plaintiff had no title to the land.”) (citing cases). Simply put,
generally, “an owner who is out of possession cannot maintain trespass.” Sky Four
24
Realty Co. v. State, 512 N.Y.S.2d 987, 989 (N.Y. Ct. Cl. 1987) (citations omitted).
Although an out-of-possession owner may not sue for trespass, such owner is not
“without remedy, but he must show more than the trespass, namely, permanent harm to
the property of such sort as to affect the value of his interest.” Id. In other words, “an
action for trespass may be brought by a person in exclusive legal possession at the time
of the trespass, and the true owner’s proper remedy is in the form of an action for
ejectment.” Id. (citations omitted). Accordingly, it follows in the instant case that the
trespass claim may be asserted by Brian, Raymond, and Bernice, who were in actual
possession of the Willis Road premises at the time of the events on which the instant
action is predicated occurred, but not by Angelene who, although named in the deed as
a grantee, was not in actual possession at the time of the trespass, and thus has no
action for trespass, nor is any remedy available in the absence of any evidence that
Hoock’s trespass permanently devalued the 49 Willis Road premises. See Oatka
Cemetery Ass’n v. Cazeau, 275 N.Y.S. 355, 359 (4th Dep’t 1934) (holding no action for
trespass lies on the part of an out-of-possession owner whose rights have not been
invaded); Domhoff, 141 N.Y.S. at 826 (“Trespass is an injury to possession, and action
therefor may be maintained by any one in actual possession of land.”).
In particular, it is undisputed that the Willis Road premises was jointly owned by
Angelene and Brian Wierzbic. TR1 at 9, TR2 at 172. Although legally an owner,
however, Angelene was not present and, thus, not in actual possession of the Willis
Road premises when the actions of which Plaintiffs complain in the instant action
occurred, nor was there any evidence from Plaintiffs of permanent devaluation of the
property caused by Hoock to support a trespass claim by Angelene as an owner in
25
constructive possession. Accordingly, Angelene did not suffer any “injury to
possession” and, as such the trespass claim does not belong to her. Sky Four Realty
Co., 512 N.Y.S.2d at 989. Because the remaining Plaintiffs, including Brian, Raymond,
and Bernice, were all present, and thus in lawful possession as a result of Brian’s
apparent permission for Raymond and Bernice’s presence when the relevant conduct
occurred, they are parties to the trespass claim and, as such, are entitled to recover
damages for the trespass.
“A trespasser may be subject to liability for physical harm done while on the land,
irrespective of whether his conduct would be subject to liability were he not a
trespasser.” Costlow v. Cusimano, 311 N.Y.S.2d 92, 97 (4th Dep’t 1970) (citing
Restatement of Torts 2d (1965) § 162). Because “the tort of trespass is designed to
protect interests in possession of property, damages for trespass are limited to
consequences flowing from the interference with possession and not for separable acts
more properly allocated under other categories of liability.” Id. In short, damages for
trespass are available only for harm arising directly from the trespass rather than arising
as a consequence of acts performed after the trespass. Id. Furthermore, although
Plaintiff Angelene is named in the deed as an owner of the 49 Willis Road premises,
Angelene was not present when the trespass occurred and, as such, cannot maintain
her action for trespass unless the trespass resulted in some permanent harm to the
property affecting the value of the out-of-possession owner’s interest. Sky Four Realty
Co. v. State, 512 N.Y.S.2d 987, 989 (N.Y. Ct. Cl. 1987). Because the record is devoid
of any indication that Hoock’s trespass permanently devalued the Willis Road premises,
Angelene cannot maintain her trespass claim.
26
Here, Plaintiffs seek to recover as damages the costs of tomato plants lost when
the tomato plants were not timely planted in the ground and watered, the court costs
Plaintiffs incurred in connection with the criminal actions, and emotional distress.
Although actual damages for harm may be recovered against a trespasser, such
damages are recoverable only insofar as such damages “arose directly from the
trespass [and are not] a consequence of acts performed after the trespass.” Costlow,
311 N.Y.S.2d at 97. Here, the damages Plaintiffs seek for the trespass are not
attributable to Defendant Hoock’s refusal to immediately leave upon being ordered to do
so by Brian and Raymond; rather, such damages are attributable to the threatening
conduct of Brian and Raymond insofar as both Brian and Raymond directed a barrage
of expletives toward Hoock and Raymond acted in a threatening manner by waiving the
large pliers at Hoock, conduct to which both Brian and Raymond testified at trial. It was
this conduct that resulted in the arrests of Brian, Raymond, and Bernice, and it was the
arrests that prevented the Plaintiffs from planting the tomato plants and caused
Defendants to incur the costs of the criminal case that was pursued against them. Nor
is the break in the chain of causal events negated by the subsequent acquittal of
Bernice on the criminal charges, or the reversal on appeal of the criminal convictions
obtained against Raymond and Brian for the criminal charges resulted from affirmative
actions undertaken by Plaintiffs who, despite being upset by Hoock’s attempted service
of process and trespassing, acted as they did in opposing Hoock and the officers,
according to their own will. Indeed, based on the evidence at trial, no reasonable jury,
based on the evidence at trial, could find otherwise. Accordingly, Plaintiffs may not
27
recover for the costs of the lost tomato plants, or for any expenses incurred in
connection with the criminal prosecution.
Nevertheless, even when no actual injury to the property owner’s possessory
interest is established, nominal damages are presumed from a trespass. Hill v.
Raziano, 880 N.Y.S.2d 173, 175 (2d Dep’t 2009) (citing cases).
“As the law infers some damage without proof of actual injury from every direct
invasion of the person or property of another, the plaintiff is always entitled to at
least nominal damages in an action of trespass, . . . . An entry into the land of
another constitutes a trespass even though damages are slight or there is no
damage, and gives rise to an action for nominal damages. Even the most
innocent of trespassers is liable for nominal damages as a minimum.”
Butler v. Ratner, 662 N.Y.S.2d 696, 698 (City Ct. City of New Rochelle, 1997) (quoting
104 N.Y. Jur.2d, Trespass, § 36 at 484.
Because the court finds, as a matter of law, that Hoock, by failing to immediately leave
the Willis Road premises after being ordered to do so numerous times by Brian on July
2, 2012, Hoock trespassed on the premises, yet the evidence fails to establish Plaintiff
suffered any measurable compensatory damages properly attributable to the trespass,
each of the three Plaintiffs whose actual possession of the 49 Willis Road premises was
trespassed by Hoock, i.e., Brian, Raymond, and Bernice, is awarded $ 1.00 (one dollar)
as nominal damages. See Butler, 662 N.Y.S. 2d at 698 (awarding on summary
judgment $ 1 in nominal damages to plaintiff who proved process server trespassed on
property in an attempt to serve papers, but failed to show he suffered any measurable
compensatory damages as a result of the trespass).
Punitive damages based on a trespass to real property are not, however,
recoverable absent evidence “‘the trespasser acted with actual malice involving
intentional wrongdoing, or that such conduct amounted to a wanton, willful, or reckless
28
disregard of the party’s right of possession.’” Arcamone-Makinano v. Britton Property,
Inc., 67 N.Y.S.3d 290, 294 (2d Dep’t 2017) (quoting Litwin v. Town of Huntington, 669
N.Y.S.2d 634, 635 (2d Dep’t 1998)). No evidence presented at trial either from Plaintiffs
or Defendants could reasonably be found to establish Defendant Hook acted with actual
malice, or that Hoock’s conduct in refusing to leave when ordered off the property
amounts to a wanton, willful, or reckless disregard of Plaintiffs’ right of possession.
See, cf., Butler, 662 N.Y.S.2d at 698 (holding that the defendant’s conduct in
trespassing upon the plaintiff’s property in an attempt to serve process despite being
told three times not to do so, “while improper, did not rise to the level of ‘actual malice,’”
nor “was ‘tantamount to a wanton and willful or reckless disregard of plaintiff’s rights.’”
(quoting MacKennan v. Jay Bern Realty Co., Inc. 291 N.Y.S.2d 953, 953 (2d Dep’t
1968)).
Nor may Plaintiffs recover for emotional distress damages as Plaintiffs had
requested caused by the trespass. In the absence of physical injuries, recovery for
emotional distress may generally be had only where one’s physical safety is threatened
by the tortfeasor’s conduct. See Jensen v. L.C. Whitford Co., Inc., 562 N.Y.S.2d 317,
318 (4th Dep’t 1990) (affirming that wife could not recover for emotional distress caused
by defendant’s destruction of her property when wife’s safety was never physically
endangered, and citing Bovsun v. Sanperi, 461 N.E.2d 843, 847-49 (N.Y. 1984)). In
particular, not only did the asserted distress arise not as a result of Hoock’s trespass,
but as a consequence of Plaintiff’s conduct after the trespass, thus breaking any causal
connection between the trespass and the asserted injuries, Costlow, 311 N.Y.S.2d at
97, but the recovery for injury to reputation and for emotional support sought by
29
Plaintiffs in the instant case is more properly attributable to an interference with rights of
a personal nature, rather than for interference with their rights to exclusive possession
of property. See Costlow, 311 N.Y.S.2d at 97 (holding plaintiffs who brought trespass
claim against defendant photographer who entered plaintiffs’ home to photograph
deceased children for publication could not recover for damages for injury to reputation
or for emotional disturbance because such damages were not recoverable as a natural
consequence of the trespass). Here, as discussed above, Discussion, supra, at 27-28,
the emotional injury damages Plaintiffs seek are attributable not to Hoock’s trespass
but, rather, to the ensuing arrests and criminal prosecution. Accordingly, no recovery
for injury to reputation or emotional disturbance may be had on the facts presented in
this case.
Judgment as a matter of law therefore should be GRANTED on the trespass
claim as to Plaintiffs Brian, Raymond, and Bernice, to whom nominal damages of $ 1
each are awarded; Angelene, despite being a legal owner of the Willis Road premises,
is not entitled to even nominal damages for the trespass because she was not in actual
possession of such premises when the trespass occurred.
4.
§ 1983 Claims
Insofar as Plaintiffs claim they were arrested without probable cause and
subjected to excessive force in the making of such arrests, such claims are for
violations of their civil rights under 42 U.S.C. § 1983, which “allows an action against a
‘person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and the
30
laws.’” Patterson v. County of Oneida, New York, 375 F.3d 206, 225 (2d Cir. 2004)
(quoting 42 U.S.C. § 1983). Section 1983, however, “‘is not itself a source of
substantive rights.’” Id. (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).
Rather, § 1983 “merely provides ‘a method for vindicating federal rights elsewhere
conferred’ . . . .” Id. Further, it is basic that liability under § 1983 requires a defendant’s
personal involvement in the alleged deprivation of a federal right. See Warren v. Pataki,
823 F.3d 125, 136 (2d Cir. 2016) (“To establish a section 1983 claim, ‘a plaintiff must
establish a given defendant’s personal involvement in the claimed violation in order to
hold that defendant liable in his individual capacity.’” (quoting Patterson v. County of
Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004))).
The elements of a § 1983 claim include (1) the deprivation of a federal
constitutional or statutory right, and (2) by a person acting under color of state law.
Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (citing Gomez v. Toledo, 446 U.S. 640
(1980)). Thus, “[t]he first step in any such claim is to identify the specific constitutional
right allegedly infringed.” Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989); and
Baker, 443 U.S. at 140). In the instant case, Plaintiffs Raymond and Brian allege they
were unlawfully arrested and subjected to excessive force in violation of their Fourth
and Fourteenth Amendment rights.
A.
Qualified Immunity
As discussed, Discussion, supra, at 14-15, Defendants maintain that Hoock is
qualifiedly immune from liability with regard to Plaintiffs’ false arrest and excessive force
claims under § 1983. “Qualified immunity shields ‘government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
31
constitutional rights of which a reasonable person would have known.’” DiStiso v. Cook,
691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt v. Millender, 565 U.S. 535,
546 (2012)). “Qualified immunity thus affords government officials ‘breathing room’ to
make reasonable – even if sometimes mistaken – decisions, and ‘protects all but the
plainly incompetent or those who knowingly violate the law’ from liability for damages.”
Id. Rather than an affirmative defense, “[q]ualified immunity is ‘an entitlement not to
stand trial or face the other burdens of litigation.’” Caldarola v. Calabrese, 298 F.3d
156, 160 (2d Cir. 2002) (quoting Saucier v. Katz, 553 U.S. 194 (2001)).
“Whether qualified immunity applies in a particular case ‘generally turns on the
objective legal reasonableness’ of the challenged action, ‘assessed in light of the legal
rules that were clearly established at the time it was taken.’” Distiso, 691 F.3d at 240
(quoting Messerschmidt, 565 U.S. at 546). “An officer is entitled to qualified immunity if
‘any reasonable officer, out of the wide range of reasonable people who enforce the
laws in this country, could have determined that the challenged action was lawful.’”
Muschette ex rel. A.M. v. Gionfriddo, 910 F.3d 65, 70-71 (2d Cir. 2018) (quoting
Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (italics in original)). Here, that the
warrantless arrests challenged by Plaintiffs had to be supported by probable cause was
settled law at the time of such arrests. See Singer, 63 F.3d at 118 (“There can be no
federal civil rights claim for false arrest where the arresting officer had probable
cause.”). Similarly, for Hoock to be qualifiedly immune from liability on the excessive
force claims, the amount of force Hoock used in subduing and arresting Plaintiffs must
have been objectively reasonable. See Muschette ex rel. A.M., 910 F.3d at 70-71
(holding police officer entitled to qualified immunity on excessive force claim based on
32
use of a taser to subdue and arrest deaf student following incident at school under
circumstances including student had fled dorm and hunkered down in restricted
construction area holding large rock, officer was informed student had thrown folding
chair at staff member and hurled rocks at teacher, after verbally warning student officer
observed staff members using sign language to communicate the warning to the
student, who appeared to ignore the officers’ instructions and warning).
“‘Whether a defendant officer’s conduct was objectively reasonable is a mixed
question of law and fact.’” Manganiello, 612 F.3d at 164 (quoting Zellner v. Summerlin,
494 F.3d 344, 367 (2d Cir. 2007)). “The factfinder must determine any disputed
material facts, and on the basis of the facts permissibly found, the court must decide
‘whether it was objectively reasonable for the officer to believe that his conduct did not
violate a clearly established right, i.e., whether officers of reasonable competence could
disagree as to the lawfulness of such conduct.’” Id. “[T]he doctrine shields officers from
suit for damages if ‘a reasonable officer could have believed’ his action ‘to be lawful, in
light of clearly established law and the information he possessed.’” Id. (quoting Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (further citation and quotation marks omitted)).
“That is, ‘[e]ven if the right at issue was clearly established in certain respects . . . an
officer is still entitled to qualified immunity if officers of reasonable competence could
disagree on the legality of the action at issue in its particular factual context.’” Id.
(quoting Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (further citation and quotation
marks omitted)). As relevant here, in Manganiello, the Second Circuit, following jury
trial, affirmed the trial court’s denial of the defendant police detective’s motion for
judgment as a matter of law on false arrest and malicious prosecution claims based on
33
the jury’s determination that the defendant misrepresented evidence to the prosecutors,
failed to pass on material information, or knowingly made false statements such that no
reasonable officer could have believed the defendant’s actions to be lawful under clearly
established law. Manganiello, 612 F.3d at 165. In contrast, the Second Circuit reversed
the district court’s denial of summary judgment on qualified immunity grounds on an
excessive force claim under circumstances in which a police officer used a taser to
subdue and arrest a deaf school student who had fled the dorm and hunkered down in
restricted construction area holding large rock, the officer was informed student had
thrown a folding chair at a staff member and hurled rocks at a teacher and, after
verbally warning the student, the officer observed staff members using sign language to
communicate the warning to the student who appeared to ignore the officer’s
instructions and warning. Muschette ex rel. A.M., 910 F.3d at 70-71. The Second
Circuit specifically held that under the circumstances, it was objectively reasonable for
the police officer to believe his use of a stun gun on the deaf student did not constitute
excessive force. Id.
B.
False Arrest
Defendants argue in support of their motion for judgment as a matter of law that
no reasonable jury could find, based on the evidence adduced at trial, other than that
the arrests of both Raymond and Brian were supported by at least reasonably arguable
probable cause such that Hoock is qualifiedly immune from liability for any unlawful
arrest, and that Hoock was not personally involved in Brian’s arrest. Defendants’
Memorandum at 5-6. In opposition, Plaintiffs argue Hoock subjected both Brian and
Raymond to warrantless arrests, neither of which was based on probable cause, and
34
that the circumstances under which the arrests occurred fail to support qualified
immunity. Plaintiff’s Response at 10-17. In further support of their motion for judgment
as a matter of law, Defendants maintain the Plaintiffs’ probable cause argument is
inapplicable to the facts of this case and is a vain attempt to “inject the ‘fruit of the
poisonous tree’ analysis into this case.” Defendants’ Reply at 5.
A § 1983 claim for false arrest requires the plaintiff establish that “the defendant
intentionally confined him without his consent and without justification.” Dufort v. City of
N.Y., 874 F.3d 338, 347 (2d Cir. 2017) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996)). The essence of a Fourth Amendment violation based on false arrest is an
unlawful restraint on physical liberty. Martinsky v. City of Bridgeport, 504 Fed.Appx. 43,
46 (2d Cir. 2012) (to prevail on a false arrest claim, civil rights plaintiff must show
defendant law enforcement officer “unlawfully restrained his physical liberty”). “The
existence of probable cause to arrest constitutes justification and is a complete defense
to an action for false arrest . . . .” Gonzalez v. City of Schenectady, 728 F.3d 149, 155
(2d Cir. 2013) (quoting Weyant, 101 F.3d at 852). See Betts v. Shearman, 751 F.3d 78,
82 (2d Cir. 2014) (“Probable cause is a complete defense to a constitutional claim for
false arrest . . . .” (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995))). Further, “the probable cause inquiry may precede any inquiry into qualified
immunity because there cannot be an allegation of a constitutional violation where
probable cause justifies an arrest and prosecution.” Stansbury v. Wertman, 721 F.3d
84, 89 (2d Cir. 2013) (citing Panetta v. Crowley, 460 F.3d 388, 394-95 (2d Cir. 2006)).
Where, however, the defendant was not personally involved in a plaintiff’s false arrest, it
is unnecessary to address whether the defendant lacked probable cause or was
35
nevertheless qualifiedly immune. The court thus turns to whether Hoock had probable
cause to arrest Brian or Raymond for any of the crimes with which they were charged
and was personally involved, for § 1983 purposes, in their arrests.
“Probable cause exists when ‘the facts and circumstances within . . . the officers’
knowledge and of which they had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed by the person to be arrested.’” Kass v. City of N.Y., 864
F.3d 200, 206 (2d Cir. 2017) (quoting Marcavage v. City of New York, 689 F.3d 98, 109
(2d Cir. 2012)). To determine whether probable cause exists, the court must “look at
the facts as the officers knew them in light of the specific elements” of the offense,
Gonzalez, 728 F.3d at 155, considering the totality of the circumstances and “the
perspective of a reasonable police officer in light of his training and experience.” United
States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008). “‘[P]robable cause does not
require an officer to be certain that subsequent prosecution of the arrestee will be
successful. It therefore is of no consequence that a more thorough or more probing
investigation might have cast doubt upon the situation.’” Fabrikant v. French, 691 F.3d
193, 214 (2d Cir. 2012) (quoting Krause v. Bennett, 887 F.2d 362, 371 (2d Cir. 1989)).
Accordingly, in the instant case, that the initial conviction eventually was reversed by the
County Court Judge on appeal does nor bear on whether the arrests challenged here
were in violation of Plaintiffs’ civil rights. See Ricciuti v. N.Y.C. Transit Authority, 124
F.3d 123, 128 (2d Cir.1997) (upholding district court’s grant of qualified immunity in
favor of defendant police officer on § 1983 claim, stating, “[o]nce a police officer has a
reasonable basis for believing there is probable cause, he is not required to explore and
36
eliminate every theoretically plausible claim of innocence before making an arrest.”
(citing cases)); Krause v. Bennett, 887 F.2d 362, 371 (2d Cir.1989) (“probable cause
does not require an officer to be certain that subsequent prosecution of the arrestee will
be successful”). Here, the evidence at trial establishes Hoock was not personally
involved in Brian’s arrest, and that it is reasonably arguable that Hoock had probable
cause to arrest Raymond for the crime of menacing in the third degree such that Hoock
is qualifiedly immune from liability for Raymond’s arrest which occurred under
circumstances supporting arguable probable cause.
1.
Brian
Defendants argue in support of their motion for judgment as a matter of law that
Defendant Hoock never arrested Brian and thus was not personally involved in any
deprivation of civil rights in connection with Brian’s arrest. Defendants’ Memorandum at
6-10. In opposition, Plaintiffs argue that Hoock’s actions amounted to a seizure of
Brian, especially in light of Hoock’s refusal to leave the Willis Road premises when
ordered to do so by Brian. Plaintiffs’ Response at 12-14. In further support of their
motion for judgment as a matter of law, Defendants argue Plaintiffs fail to point to any
facts supporting a seizure of Brian by Hoock, maintaining Plaintiffs’ assertion that
Hoock’s refusal to leave the premises upon Brian ordering him to do so establishes
Brian was seized by Hoock is “preposterous.” Defendants’ Reply at 6-7.
As stated, Discussion, supra, at 31, liability under § 1983 requires a defendant’s
personal involvement in the alleged deprivation of a federal right. Warren, 823 F.3d at
136. In the instant case, the facts to which Brian testified at trial establish that Hoock
did not arrest Brian because Brian never perceived that his movement was, without his
37
consent, confined by Hoock, rendering the concepts of both probable cause and
qualified immunity irrelevant with regard to Brian’s false arrest claim.
In particular, “‘not all personal intercourse between policemen and citizens
involves ‘seizures’ of persons. Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen may we conclude
that a ‘seizure’ has occurred.’” DiGennaro v. Town of Gates Police Dep’t 2013 WL
3097066, at * 18 (W.D.N.Y. June 18, 2013) (quoting United States v. Mendenhall, 446
U.S. 544, 552 (1980)). “‘[T]he police can be said to have seized an individual ‘only if, in
view of all the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.’” Simon v. City of New York, 893 F.3d 83, 99 (2d
Cir. 2018) (quoting Michigan v. Chesternut, 486 U.S. 567, 573 (1988)).
“‘[C]ircumstances that might indicate a seizure’ include ‘the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that compliance
with the officer’s request might be compelled.’” Id. (quoting Kaupp v. Texas, 538 U.S.
626, 630 (2003). “‘As long as the person to whom questions are put remains free to
disregard the questions and walk away, there has been no intrusion upon that person’s
liberty or privacy [sufficient to constitute an arrest or seizure for Fourth Amendment
pusposes].’” DiGennaro, 2013 WL 3097066, at * 18 (quoting Mendenhall, 446 U.S. at
554). Here, Brian’s own trial testimony establishes Hoock never asserted the required
show of authority over Brian, and that Brian never believed he was not free to leave so
as to find Hoock arrested Brian.
38
Specifically, although Brian testified that Hoock, prior to seizing Raymond, stated
that Raymond was under arrest and then advised Brian that he was also under arrest,
TR1 at 135-37; TR3 at 188, according to Brian’s testimony, after Hoock told Brian he
was under arrest, Brian grabbed Hoock’s left arm in an attempt to stop Hoock from
pursuing Raymond. TR1 at 136-38. Brian explained that because he believed Hoock
was trespassing, Hoock had no authority to arrest anyone. Id. at 137-38. Brian’s trial
testimony that he believed Hoock’s status as a trespasser rendered Hoock without any
rights or authority on the Willis Road premises is consistent with Brian subsequent
actions to which Brian testified during cross-examination that establish Brian did not
consider himself to be under arrest, including that while Hoock pursued Raymond on
foot around the Willis Road premises, Brian’s own movement was unimpeded as he
stood “watching Hoock for his next move.” Id. at 140. In response to crossexamination, Brian admitted he “could have gone anywhere you wanted at that point in
time,” id., including into the house, id., to the road, id., or even “climbed a tree,” id.,
despite Hoock having told Brian he was under arrest. Id. Brian’s cross-examination
testimony is consistent with his direct testimony that, while following Hoock around the
Willis Road premises and trying to grasp Hoock’s arm to prevent Hoock from reaching
Raymond, Brian continuously yelled expletives toward Hoock, demanding Hoock leave
the premises. Id. at 16-17. Brian opined that Hoock “was an irrational person . . . . He
was one of those people that just made demands and yet gave nobody any reason to
meet his demands because he just yelled and commanded everything he wanted and
expected it. So, because we didn’t give him what he wanted, he was just yelling, you’re
under arrest to everybody,” id. at 17, further establishing to any reasonable juror that, to
39
Brian, Hoock’s statements were meaningless utterances without consequence to his
liberty on the premises at that time. Although Hoock said Brian was under arrest,
Hoock did not order Brian to stay in one place, but continued walking at a brisk pace in
pursuit of Raymond who was walking deeper into the property away from the road, with
Brian following Hoock who was hoping to prevent Hoock from reaching Raymond. Id. at
19-20. By the time Hoock finally caught up with Raymond, Brian was 30 feet behind
Hoock, id. at 21, with Brian attributing the distance to the fact that Hoock ran the final 40
feet to reach Raymond. Id. at 23-24. Even after Raymond was pepper-sprayed, Brian
freely walked toward the house seeking water to wash the pepper spray residue from
Raymond, leaving Raymond with Hoock who then engaged in a physical altercation. Id.
at 36, 42, 44. These circumstances as testified to by Brian establish that Brian did not
submit to Hoock’s authority, nor reasonably felt that he was unable to leave.
Significantly, the parties do not dispute that it was not Hoock who eventually physically
seized and handcuffed Brian, but Deputy Weiss who Plaintiffs have dismissed from the
action. TR1 at 36-39, 49, 143. 7 Accordingly, on this record, no reasonable jury could
find that Hoock arrested Brian such that judgment as a matter of law pursuant to Rule
50(b) should be GRANTED in favor of Defendants on Brian’s § 1983 false arrest claim
for lack of Hoock’s personal involvement in arresting Brian.
2.
Raymond
Defendants argue in support of their motion for judgment as a matter of law that
the trial testimony of Raymond and Brian establishes Deputy Hoock had the requisite
7
The court notes this is consistent with the Erie County Sheriff’s Office Police Report (Dkt. 81-18 at 10),
which was not admitted into evidence at the trial, but in which Deputy Weiss is stated to be the law
enforcement officer who took Brian into custody.
40
probable cause to support the qualified immunity defense with regard to Raymond’s
arrest for menacing in the third degree. Defendants’ Memorandum at 10-12. In
opposition, Plaintiffs maintain Deputy Hoock was trespassing at the Willis Road
premises and thus was without legal justification to arrest Raymond for menacing, a
crime for which the trial testimony fails to establish Hoock had probable cause.
Plaintiffs’ Response at 14-17. Defendants argue in reply that Plaintiffs fails to address
that under the doctrine of qualified immunity, Deputy Hoock only needed reasonably
arguable probable cause, Defendants’ Reply at 4-5, a point which Plaintiffs fail to
address, id. at 6, relying instead on a “fruit of the poisonous tree” argument which,
although relevant to a Fourth Amendment unlawful seizure claim in the context of a
criminal action, is inapplicable in the context of a § 1983 civil rights claim. Id. at 5.
Preliminarily, the court addresses the effect of Hoock’s status as a trespasser on
the validity of the subsequent arrest of Raymond. Despite determining that Hoock, by
failing to immediately leave the 49 Willis Road premises after being directed to do so by
Brian, became a trespasser, the trial testimony establishes that Raymond’s conduct in
waving a pair of large pliers in a threatening manner at Hoock, accompanied by
repeatedly yelling foul language and directing expletives toward Hoock in a hostile
manner engaged in the crime of menacing in the third degree under New York law, for
which Raymond was convicted by the Aurora Town Court, such that Hoock’s presence
was no longer solely that of a trespasser, but as an Erie County Deputy Sheriff
threatened with physical harm, in which capacity Hoock then acted in arresting
Raymond. See N.Y. Penal Law § 35.27 (McKinney 1980) (New York’s “no-sock” law
providing “[a] person may not use physical force to resist an arrest, whether authorized
41
or unauthorized, which is being effected or attempted by a police officer or peace officer
when it would reasonably appear that the latter is a police officer or peace officer.”).
See also cf., McKnight v. Vasile, 2018 WL 4625549, at *3 (W.D.N.Y. Sept. 27, 2018
(fact that § 1983 plaintiff’s arrest was illegal for lack of probable cause did not permit the
plaintiff to resist arrest). Simply, under New York law, a trespasser is not without the
protection of the New York Penal Law. See, e.g., People v. Cox, 707 N.E.2d 428, 47475 (N.Y. 1998) (upholding trial court’s refusal to instruct jury that under N.Y. Penal Law
§ 35.20(3), a personal in possession of a dwelling may use deadly force against a
burglar where the evidence did not support defendant’s argument that deadly force was
necessary to prevent an assault by the burglar). Moreover, as Defendants maintain,
Defendants’ Reply at 5, Plaintiffs’ argument that absent an “articulable basis to suspect
foul play,” which was not present in light of Hoock’s unsuccessful attempt to serve civil
process and the subsequent conversion of Hoock’s status to trespasser after Hoock
failed to leave the Willis Road premises in accordance with Brian’s repeated
commands, in actuality seeks to nullify Raymond’s subsequent arrest as resulting from
Hoock’s trespassing on the premises. The so-called “fruit of the poisonous tree”
doctrine, however, “is an evidentiary rule that operates in the context of criminal
procedure.” Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.1999) (citing Wong
Sun v. United States, 371 U.S. 471, 484-88 (1963); and Costello v. United States, 365
U.S. 265, 280 (1961)). “The doctrine is an extension of the long-recognized
exclusionary rule, and as such has generally been held ‘to apply only in criminal trials.’”
Id. (citing Segura v. United States, 468 U.S. 796, 804 (1984), and quoting Pennsylvania
Bd. of Probation & Parole v. Scott, 524 U.S. 357, 364 n. 4 (1998)). As such, although
42
the apparent basis for the County Court’s reversal of Plaintiffs’ criminal convictions, the
doctrine “is inapplicable to civil § 1983 actions,” Townes, 176 F.3d at 145, and Hoock’s
status as a trespasser at the Willis Road premises does not negate any probable cause
supporting Raymond’s arrest to establish § 1983 liability.
Further, because Defendants’ Rule 50(b) motion for judgment as a matter of law
is premised on the qualified immunity affirmative defense, Defendants need establish
only that the evidence at trial supports that Hoock arguably had probable cause to
arrest Raymond for the crime of menacing in the third degree. See Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir. 2007) (stating, in defining “arguable” probable
cause, that “[t]he essential inquiry in determining whether qualified immunity is available
to an officer accused of false arrest is whether it was objectively reasonable for the
officer to conclude that probable cause existed.”). In New York, the crime of menacing
in the third degree is committed by someone “when, by physical menace, he or she
intentionally places or attempts to place another person in fear of death, imminent
serious physical injury or physical injury.” N.Y. Penal Law § 120.15 (McKinney 1992).
The trial testimony contains more than ample undisputed evidence to establish Hoock
arguably had probable cause to arrest Raymond for menacing to support Hoock is
qualifiedly immune.
Specifically, the trial testimony given by both Brian and Raymond supports that it
was objectively reasonable for Hoock to conclude he had probable cause to arrest
Raymond for menacing in the third degree. In particular, Raymond testified that his first
words to Hoock on July 2, 2012, were in response to Hoock’s inquiring who Raymond
was with Raymond, then several feet away working on a tractor, yelling, “If you ain’t got
43
an arrest warrant or if you don’t have a search warrant, I said get the fuck off the
property. I said you’ve been told to get off the property.” TR2 at 83; 101. Raymond
admitted Hoock did not use any vulgarities or profanities nor act in a confrontational
manner in inquiring who Raymond was. Id. at 101-02. When Raymond made this
remark, Raymond was holding in his hand a pair of channel lock pliers Raymond had
been using to unhook a hose from the tractor. Id. at 83-84. According to Raymond,
when he made the statement to Hoock, Raymond was gesturing with his hands while
holding the pliers and did not comply with Hoock’s request that Raymond put down the
pliers, id. at 85-86, despite Hoock’s advising Raymond the pliers presented a safety
issue given the pliers could be used as a weapon, id. at 88-89, and Brian, located in
close proximity to Hoock, also yelling at Hoock. Id. at 93-94, 104. It was only after
Raymond refused to put down at Hoock’s request the pliers and continued yelling
expletives at Hoock, with Brian joining in the yelling, that Hoock advised Raymond he
was under arrest, id. at 133, following which Raymond turned and with the pliers still in
hand angrily stormed away from Hoock, further onto the Willis Road premises, while
continuing to yell foul language and waving the pliers, id. at 99, 102-05, eventually
throwing the pliers into an open toolbox near the barn. Id. at 103, 106-07. Raymond’s
version of the events is consistent with that described by Brian, including that when
Hoock first approached the Willis Road premises, Raymond was using pliers while
working on a hose connection on the water tank behind a tractor, TR1 at 11, and when
Hoock asked Brian the identity of the man near the tractor, requesting Raymond to put
down the pliers, Raymond stood up and, in anger, raising the pliers in his hand, yelled
that Hoock had no right to be on the property without an arrest or search warrant and to
44
“get the fuck out of here,” id. at 13, 118-19, 171, with Brian joining in the heated
exchange for several minutes. Id. at 13. Hoock then advised that Raymond was under
arrest, id. at 133, 135, 171, and Raymond then turned and stalked away from Hoock,
eventually throwing the pliers into an open toolbox near the barn, and continued to walk
away with Hoock following. Id. at 15-16,130. Plaintiffs’ argument, Plaintiffs’ Response
at 15, that Hoock, who was armed with his service weapon, could not have had a “wellfounded fear” that Raymond, armed only with pliers, posed a threat of “imminent
physical injury,” ignores that it was not only Raymond who was yelling and acting in an
aggressive manner toward Hoock, but also Brian who directed foul and threatening
language toward Hoock. Under these circumstances, despite remaining at the Willis
Road premises after being ordered to leave and becoming a trespasser, Hoock, upon
observing Raymond’s gesturing with the pliers accompanied by expletives and
threatening language specifically directed to Hoock, arguably had probable cause to
believe that Raymond was intentionally attempting to place Hoock in fear of physical
injury supporting Raymond’s arrest for the crime of menacing in the third degree, a
conclusion also reached by the Aurora Town Court in convicting Raymond of this
offense. Accordingly, Defendant Hoock is qualifiedly immune from liability for the
alleged false arrest of Raymond, and Defendants’ motion for judgment as a matter of
law pursuant to Rule 50(b) is GRANTED with regard to Raymond’s § 1983 claim for
false arrest.
C.
Excessive Force
Defendants argue in support of judgment as a matter of law that Plaintiffs’
excessive force claims must be rejected because the evidence at trial established that
45
the force used to arrest Brian and Raymond was objectively reasonable in light of the
facts and circumstances faced by the arresting officers at the time of the incident.
Defendants’ Memorandum at 12-13, 15-16, that the only physical contact between
Hoock and Brian was initiated by Brian, requiring dismissal of the claim against Hoock
for lack of personal involvement, id. at 13-15, and that injuries Raymond sustained are
de minimis and, thus, fail to support the excessive force claim. Id. at 16-18. Plaintiffs’
entire argument in opposition is, “Plaintiffs claim that all force used against them was
excessive because they were illegally arrested and thus their excessive force claims are
mostly sub-summed [sic] by their Fourth Amendment claims for unlawful search and
seizure.” Plaintiffs’ Response at 17. Defendants maintain Plaintiffs’ failure to rebut
Defendants’ arguments on the excessive force claims establishes Defendants’
entitlement to judgment as a matter of law on such claims. Defendants’ Reply at 7-8.
“‘The Fourth Amendment prohibits the use of excessive force in making an
arrest, and whether the force used is excessive is to be analyzed under that
Amendment’s ‘reasonableness standard.’’” Outlaw v. City of Hartford, 884 F.3d 351,
366 (2d Cir.2018) (quoting Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015)).
“The ‘proper application’ of this standard ‘requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.’” Id.
(quoting Graham, 490 U.S. at 396). The reasonableness determination must include
consideration of the fact that law enforcement officers often are forced to make quick
decisions under stressful and rapidly evolving circumstances rendering the calculation
46
of what amount of force is reasonable difficult. Graham, 490 U.S. at 396-97. Relevant
factors include the severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of the officers or others, and whether the suspect was
actively resisting arrest. Brown, 798 F.3d 100 (citing Graham, 490 U.S. at 396). To
support an excessive force claim, Plaintiffs must establish that Hoock used more than
de minimis 8 force. Feliciano v. Thomann, 747 Fed.Appx. 885, 887 (2d Cir. 2019).
“Even conduct that caused some physical pain and resulted in side effects need not be
compensated if a jury finds that such injuries were de minimis.” Ali v. Kipp, 2016 WL
7235719, at *7 (E.D.N.Y. Dec. 13, 2016) (citing Kerman v. City of New York, 374 F.3d
93, 123 (2d Cir. 2004) (denying § 1983 plaintiff’s motion for a new trial where despite
prevailing on unlawful seizure claim, the plaintiff’s claimed injuries lacked objective
support or credibility and were relatively minor). Nevertheless, while “not every push or
shove constitutes excessive force,” Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995)
(citing Graham, 490 U.S. at 396), a show of force by an officer that is overly
disproportionate to the risk of harm may support a claim for excessive force.
Gersbacher v. City of New York, 2017 WL 4402538, at * 11 (S.D.N.Y. Oct. 2, 2017)
(denying defendant police officers summary judgment on plaintiff’s excessive force
claim where evidence showed that plaintiff verbally opposed the arrest, but did not
attempt to flee or attack the arresting officer, calling into question whether the forced
used by the arresting officer, which caused relatively minor injuries, was excessive).
The “reasonableness of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Brown,
8
“De minimis” is defined as “trifling” or “negligible.” De Minimis, Black’s Law Dictionary (10th ed. 2014).
47
798 F.3d at 100-01. Further, a § 1983 defendant will be qualifiedly immune from liability
on an excessive force claim where the defendant’s use of force was objectively
reasonable under the circumstances. Muschette ex rel. A.M., 910 F.3d at 70-71. In the
instant case, the trial evidence establishes judgment as a matter of law should be
granted in favor of Defendants on the excessive force claims either because the
evidence does not support Hoock’s used any force in excess of that required under the
circumstances, or that it was objectively reasonable for Hoock to believe under the
circumstances confronting him that his use of force did not constitute excessive force
such that Hoock is qualifiedly immune from liability on Raymond’s § 1983 claim for such
use of force.
1.
Brian
Just as the undisputed evidence at trial established that Hoock was not
personally involved with Brian’s arrest, requiring dismissal of Brian’s false arrest claim
against Hoock, the undisputed evidence at trial also fails to establish that Hoock was
not personally involved in any physical contact directed toward Brian. In particular,
Brian testified at trial that Brian grabbed Hoock’s arm in an attempt to prevent Hoock
from reaching Raymond, but denied that Hoock used any force against him. TR1 at
130-33. It is also undisputed that Brian was arrested and handcuffed by Deputy Weiss,
not Hoock. Absent any conduct by Hoock against Brian, Brian cannot maintain his
excessive force claim against Hoock. Accordingly, for lack of Hoock’s personal
involvement, Defendants’ Rule 50(b) motion for judgment as a matter of law is
GRANTED as to Brian’s excessive force claim.
48
2.
Raymond
Defendants maintain that Raymond cannot recover for any of Hoock’s four
separate uses of force because each use of force resulted in only de minimis injuries,
Defendants’ Memorandum at 16-17 (citing Vazquez v. Curcione, 2013 WL 5408858, at
*4 (W.D.N.Y. Sept. 25, 2013)), Raymond’s arrest for a crime involving a threat of
physical violence justified the use of force, id. at 17, Raymond’s conduct posed an
immediate threat to the safety of the officers and others, id. at 17-18, and Raymond
actively resisted arrest. Id. at 18. As stated, Discussion, supra, at 46, Plaintiff has not
offered any particular argument in opposition to judgment as a matter of law on this
claim. Nor did Plaintiffs enter into evidence any medical records to substantiate
Raymond’s alleged injuries. The court’s consideration of each of the four uses of force
by Hoock against Raymond that Defendants identified in thus limited to the trial
testimony. 9
a.
Punching Raymond from Behind
Raymond testified that while Raymond, carrying the pliers, walked away
from Hoock deeper into the Willis Road premises, Hoock followed Raymond and began
punching Raymond in the back and in the back of Raymond’s head while trying to grab
Raymond’s hand in which Raymond held the pliers, TR2 at 107-08, and Brian similarly
testified Raymond was still holding the pliers when Hoock punched Raymond. TR1 at
9
Insofar as Raymond complains the handcuffs were applied too tightly and cut into his wrists which bled
as a result TR2 at 21-23, Raymond refers not to his initial arrest at Willis Road, in which Hoock was
involved, but to the subsequent transport from the ECHC to Aurora Town Court for arraignment on the
criminal charges, at which Hoock was not present. Accordingly, Hoock was not involved in applying the
handcuffs to transport Raymond to Aurora Town Court such that no excessive force claim based on this
application of handcuffs to Raymond lies against Hoock in the absence of his personal involvement, a
prerequisite for § 1983 liability.
49
128. Hoock’s punching of Raymond, however, occurred after Hoock advised Raymond
he was under arrest, and while Hoock was attempting to gain control over Raymond
who, by walking away from Hoock and further onto the Willis Road premises, carrying
the pliers, swearing at Hoock, and refusing to comply with Hoock’s attempt to arrest
him. Hoock thus was faced with a defendant to a menacing crime, carrying pliers,
acting in a threatening manner, who was attempting to evade arrest by flight, all of
which support some use of force. Outlaw, 884 F.3d at 366. Nor does Raymond
attribute Hoock’s allegedly punching Raymond in the back and back of the head, and
grabbing Raymond’s arm, to even the most minimal injury such that any resulting injury
was, as most, de minimis and insufficient to support an excessive force claim under §
1983. Boyler v. City of Lackawanna, 287 F.Supp.3d 308, 323 (W.D.N.Y. 2018) (citing
Regels v. Giardono, 113 F.Supp.3d 574, 599 (N.D.N.Y. 2015) (“[A] de minimis use of
force will rarely suffice to state a constitutional claim. Moreover, de minimis injury can
serve as conclusive evidence that de minimis force was used.”)). Not only was this use
of force insufficient to be considered by any reasonable jury as excessive, but even if
such use of force by Hoock could be construed as excessive, the circumstances
confronting Hoock when using such force establishes it was objectively reasonable for
Hoock to believe the use of force did not constitute excessive force such that Hoock is
qualifiedly immune from § 1983 liability on this claim. Muschette ex rel. A.M., 910 F.3d
at 70-71.
b.
Pepper Spray
Raymond claims that after Hoock followed him approximately 350 feet around
the Willis Road premises, Hoock sprayed Raymond, with Raymond yelling in response
50
he could not believe Hoock pepper-sprayed him and calling Hoock a “faggot fuck.” TR2
at 113-14. Because Raymond turned his head away when he saw Hoock with the can
of pepper spray, only a small amount of spray hit his face, but it dripped down his neck
and back causing such a burning sensation that Raymond changed course and headed
toward the garden hose at the side of the house intending to wash off the spray residue.
TR2 at 113-121. In contrast, Hoock maintains his pepper spray cannister was nearly
empty and the little bit of pepper spray that did emit “just kind of dripped onto the
ground,” possibly getting on Raymond’s sneakers. TR3 at 189-90,192 198. According
to Hoock, because Raymond had led them some 300 feet from the road with Brian
present, and given Brian and Raymond’s behavior, Hoock believed the proactive use of
the pepper spray would avoid a more physical altercation which, in Hoock’s experience,
was likely then coming to a head, TR3 at 205-08, which is consistent with the hostile
manner in which Raymond spoke to Hoock. Significantly, in response to questioning
whether Raymond was incapacitated by the use of pepper spray, Raymond responded,
“Not totally, but it hurt,” TR2 at 113, and Raymond also admitted it was not enough to
cause Raymond to submit to arrest by Hoock, which Raymond continued to avoid, id. at
113-17, such that Hoock’s use of pepper spray was not more that a de minimis use of
force and, thus, insufficient to support an excessive force claim. Regels, 113 F.Supp.3d
at 599 (“[A] de minimis use of force will rarely suffice to state a constitutional claim.
Moreover, de minimis injury can serve as conclusive evidence that de minimis force was
used.”). Moreover, neither Raymond nor Brian deny that their anger at the situation was
both real and obvious, and that both Raymond and Brian were moving deeper onto the
Willis Road premises, away from the road, with Raymond seeking to avoid arrest and
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Brian seeking to impede Hoock’s attempt to arrest Raymond such that no reasonable
jury could conclude other than that Hoock’s belief that the use of the pepper spray was
reasonable under the circumstances with which he was confronted such that Hoock is
qualifiedly immune from liability for this use of force. 10 Muschette ex rel. A.M., 910 F.3d
at 70-71.
c.
Fighting with Hoock While Resisting Arrest
Raymond testified that he, Brian and Hoock were standing in the area of the carport at
the Willis Road premises, and when the three additional law enforcement officers
arrived at the scene, Hoock grabbed Raymond by the throat and started punching
Raymond in the back, and Raymond responded by flipping Hoock onto his back,
straddling Hoock, and using his right arm to place Hoock in a headlock on the ground.
TR2 at 129-31, 133. Raymond explained he placed Hoock in the headlock so that
Hoock would stop punching him. Id. at 134-35. Two of the newly arrived officers,
Deputies Flowers and Weiss, joined in the melée, choking and punching Raymond in an
attempt to pull Raymond off Hoock. Id. at 131-32. Raymond also admitted that after
the other law enforcement officers arrived to assist Hoock, and Raymond was pepper
sprayed the second time, hitting Raymond in his face, Raymond continued to resist
arrest, stating that he was fighting as if “for [his] life,” and it took three law enforcement
officers to apply the handcuffs. TR2 at 143-44. Accepting Raymond’s description of
this use of force as accurate, a reasonable jury could only find that any injury inflicted on
10
Nor do Plaintiffs deny that it was a later application of pepper spray by either Deputy Flowers, Deputy
Weiss, or Officer Braeuner, but not by Hoock, that hit Raymond squarely in the face, with Raymond
testifying he was pepper sprayed three times, including the first time by Hoock, the second time by
Deputy Flowers, Deputy Weiss, or Officer Braeuner, and the third time, after Raymond was handcuffed,
down the throat by Deputy Flowers. TR2 at 139-41.
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Raymond as a result of Hoock’s conduct was de minimis which, as stated, Discussion,
supra, at 49, is insufficient to support an excessive force claim. Regels, 113 F.Supp.3d
at 599. Any subsequent use of force by Hoock after being placed in the headlock was,
on this evidence, justified by the circumstances Hoock encountered at that time.
Accordingly, the third use of force was not unconstitutionally excessive, but even if it
were, Hoock would be entitled to qualified immunity on this § 1983 claim in light of the
circumstances under which Hoock used this force against Raymond. Muschette ex rel.
A.M., 910 F.3d at 70-71.
d.
Repeated “Smashing” of Raymond’s Head into Ground
Raymond claims that after he was placed in handcuffs, he ceased resisting
arrest, but for ten minutes Hoock “continually smash[ed]” Raymond’s head into the
ground, TR2 at 148, and the law enforcement officers shot water in Raymond’s face at a
close distance, with the water going up Raymond’s nose and down his throat, creating a
drowning sensation such that Raymond could not breathe. TR 2 at 155-57. Although, if
true, Hoock would not be qualifiedly immune from liability for use of such force which
could only be described as excessive given that Raymond by then, had been
handcuffed and subdued, based on the trial evidence no reasonable jury could find that
for ten minutes, repeatedly smashed Raymond’s head into the ground because the
resulting injuries are not consistent with such supposed use of force by Hoock.
Specifically, although the area onto which Hoock allegedly smashed Raymond’s head
was a “stone driveway,” TR2 at 150, the only proof of injuries presented to the jury were
photographs taken two days later showing some small scratches on Raymond’s skin
and some discoloration. TR2 at 45, 149-51. Significantly, Raymond’s trial testimony
53
that the discoloration is evidence that his whole face was bruised, TR2 at 151, is flatly
inconsistent with Raymond’s insistence that Hoock repeatedly smashed the left side of
his face onto the stone driveway for ten minutes. 11 Id. Raymond’s recollection is thus
inconsistent with a commonsense understanding of the effects on a person’s face of
such force. Furthermore, Raymond was transported to ECMC not for any head injuries
but, rather, in connection with Raymond’s complaints regarding his blood sugar and
elevated blood pressure, and there was no trial evidence that while at ECMC Raymond
received any wound care or had any cuts or abrasions dressed or bandaged.
Accordingly, no reasonable jury could find on this record that after the handcuffs were
applied to Raymond, Hoock used physical force against Raymond that resulted in
anything more than de minimis injuries which, as stated, Discussion, supra, at 49, are
insufficient to sustain an excessive force claim. Regels, 113 F.Supp.3d at 599.
Finally, although Raymond characterized Defendant Hoock’s application of water
to his face to provide some relief from the burning sensation resulting from the use of
pepper spray as “water boarding,” asserting Raymond felt as though he were drowning,
the trial transcript establishes, without any objection, that the hose Hoock used was a
garden hose that did not have a spray nozzle attached such that even at “full blast,” as
Raymond claimed, TR2 at 154, the water could only “dribble” out. TR3 at 200. As
Hoock explained, the hose was placed at the top of Raymond’s forehead so that the
water would wash into his eyes to relieve the burning sensation. TR3 at 202. On this
testimony, to which no objection was raised nor any other version presented, no
11
Although not argued by Defendants, the extensive discoloration is more consistent with the second use
of pepper spray by either Deputies Flowers or Weiss, but not Hoock, or Officer Braeuner, TR2 at 139-42,
which the parties do not dispute hit Raymond in the face.
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reasonable jury could find that the force of the water Hoock applied to Raymond was so
intense as to cause Raymond to believe he was going to drown, such that the use of
force was de minimis. Moreover, given that Raymond admits he desired to wash away
the pepper spray residue, TR2 at 154, Hoock’s use of the garden hose, unfitted with a
spray nozzle, to direct water onto Raymond’s face and into his eyes, TR3 at 200, 202,
was a sufficiently reasonable use of force under the circumstances as to render Hoock
qualifiedly immune from this excessive force claim. Muschette ex rel. A.M., 910 F.3d at
70-71
Defendants’ Rule 50(b) motion for judgment as a matter of law thus is GRANTED
with regard to Raymond’s excessive force claim.
5.
Defendant Sheriff Howard
Because liability for the claims asserted against Defendant Sheriff Howard could
only be derivative of any liability as to Defendant Deputy Hoock based on the theory of
respondeat superior, Defendant Howard is vicariously liable for trespass based on
Hoock’s failure to withdraw after ordered to do so by Brian, but not for false arrest or
excessive force. See Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (vicarious liability
is inapplicable to § 1983 suits).
6.
In Limine Motions
Although the court reserved decision on the three in limine motions filed by
Plaintiffs and Defendants prior to the start of trial, none of the issues raised in the
motions ever arose during the trial. Moreover, because the court is resolving the
remaining claims as a matter of law, no retrial is necessary. As such, the three in limine
motions are DISMISSED as moot.
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CONCLUSION
Based on the foregoing, Defendants’ Motion (Dkt. 136), is DENIED in part as to
the trespass claim, and GRANTED in part as to the false arrest and excessive force
claims. Plaintiffs are each awarded $ 1.00 (one dollar), as nominal damages on the
trespass claim. The Clerk of Court is directed to enter judgment accordingly and to
close the file.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
May 2nd, 2019
Buffalo, New York
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