Wierzbic et al v. County of Erie et al
Filing
98
DECISION AND ORDER GRANTING the 81 Motion for Summary Judgment by Defendants Robert Braeuner, East Aurora Police Department, and Ronald Krowka; GRANTING in part and DENYING in part the 83 Motion for Summary Judgment by Defendants County of Erie, Erie County Sheriff's Department, James Flowers, Michael Hoock, Timothy Howard, Thomas Was, and Jason Weisser; DENYING 84 Motion for Summary Judgment by Plaintiffs Angelene Wierzbic, Bernice Wierzbic, Brian Wierzbic, and Raymond Wierzbic; DIR ECTING the Clerk of the Court terminate parties the County of Erie, Erie County Sheriff's Department, the East Aurora Police Department, Robert Braeuner, and Ronald Krowka. Signed by William M. Skretny, United States District Judge on 1/25/2018. (MEAL)- CLERK TO FOLLOW UP -
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 1 of 33
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RAYMOND WIERZBIC, et al.,
Plaintiffs,
v.
DECISION AND ORDER
13-CV-978S
COUNTY OF ERIE, et al.,
Defendants.
I.
INTRODUCTION
Plaintiffs Raymond Wierzbic, Bernice Wierzbic, Brian Wierzbic, and Angelene
Wierzbic1 bring this action against Defendants the County of Erie, the Erie County
Sheriff’s Department, Erie County Sheriff Timothy Howard, Deputy Erie County Sheriff
Michael Hoock, Deputy Erie County Sheriff Jason Weisser, Deputy Erie County Sheriff
Thomas Was, Deputy Erie County Sheriff James Flowers (together, the “Erie County
Defendants”), as well as the East Aurora Police Department, East Aurora Police Chief
Ronald Krowka, and East Aurora Police Officer Robert Braeuner (together, the “East
Aurora Defendants”). Presently before this Court are motions for summary judgment from
the Erie County Defendants, the East Aurora Defendants, and Plaintiffs. For the following
reasons, the East Aurora Defendants’ motion is granted, the Erie County Defendants’
motion is granted in part and denied in part, and Plaintiffs’ motion is denied.
1
Raymond and Bernice are the parents of Brian and Angelene. For ease of reference, Plaintiffs are referred
to by their given names.
1
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 2 of 33
II.
BACKGROUND2
On July 2, 2012, Erie County Deputy Sheriff Michael Hoock arrived at 49 Willis
Road in the Town of Aurora, New York, to serve process in a civil action on Plaintiff
Raymond Wierzbic. Deputy Hoock testified during Plaintiffs’ criminal trial that, on the day
in question, he was in uniform and driving a marked “civil” Sheriff’s vehicle. (See Docket
No. 84-5 (“Hoock Testimony”) at 84, 128.) He had reviewed the papers he was carrying
and believed the property to be owned by Raymond Wierzbic. 3 (Id. at 152.)
When Deputy Hoock exited his car at 49 Willis Road, he observed Brian,
Raymond, and Bernice on the property. (Id. at 84-85.) Deputy Hoock approached
Plaintiffs and asked, “Who is Raymond Wierzbic? Is he here?” and Brian responded by
stating that Raymond did not live on the property and telling Deputy Hoock to get out. (Id.
at 87.) Deputy Hoock “explained to [Plaintiffs that he] needed to find out who Raymond
is . . . and they proceeded to tell [him] that, to get out of here, and they’re not going to
cooperate.” (Id. at 88-89.) Deputy Hoock testified that Plaintiffs became “more and more
hostile” and that “no matter what [he] said to try to diffuse [sic] the situation, it didn’t seem
to make a difference.” (Id. at 89.) He then made a “demand” to see identification, which
they “pretty much ignored.” (Id.)
After Deputy Hoock had been told repeatedly to leave the property, and had made
a “demand” for identification, he noticed Raymond pick up a pair of pliers. (Id.) At that
point, he was approximately 10 yards away from Raymond, who raised the pliers up to
2
For the sake of brevity and clarity, this Court will recite only those facts pertinent to the pending motion.
The facts are drawn from the parties’ Rule 56 Statements of Facts and the attached exhibits, and are
undisputed unless otherwise noted.
3 For ease of reference, the site of the incident is referred to as “Plaintiffs’ property” throughout. However,
as no evidence has been submitted on the subject, this Court makes no determination as to the ownership
of 49 Willis Road.
2
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 3 of 33
“head-level” and waved them while shouting “get out of here[, y]ou’ve got no right to be
here, et cetera.” (Id. at 89-90.) Although Raymond did not move toward him, Deputy
Hoock felt “very threatened” because Raymond refused to put the pliers down and said “I
don’t have to do that” when Deputy Hoock instructed him to do so, saying that it was “an
officer safety issue.” (Id. at 90-91.) On cross-examination, when asked why he did not
comply with the Plaintiffs’ requests that he leave the property immediately, Deputy Hoock
testified: “It wasn’t initially said to me, right away. And, the pliers became an incident at
that point.” (Id. at 139.) This appears to be at odds with Deputy Hoock’s earlier testimony
that Brian’s initial response to him was an instruction to leave (id. at 87), and that he did
not notice the pliers until after he had been told to leave several times (id. at 89). He later
confirmed on cross-examination that Raymond “told [him] numerous times to get off the
property, even before he picked up the pliers.” (Id. at 166.)
After Raymond had waved the pliers for “about a good minute” without coming any
closer, Deputy Hoock radioed for backup. (Id. at 92.) Raymond and Brian had walked
away from him, toward a barn farther back on the property, and he followed at a safe
distance. (Id. at 93-94.) As Raymond approached the barn, he threw the pliers inside
and turned to face Deputy Hoock. (Id. at 94.) Deputy Hoock told Raymond that he had
radioed for backup and that Raymond was under arrest for menacing. (Id. at 95-96.)
Brian then approached Deputy Hoock and “bumped” or shoulder-checked him, seemingly
trying to stop him from walking toward Raymond. (Id. at 95-96.) Deputy Hoock told Brian
to “back off” or he would be arrested for obstruction; Brian responded that he “didn’t care”
and that Deputy Hoock was “not arresting anybody.” (Id. at 96.) Deputy Hoock then told
Raymond to put his hands behind his back and, when Raymond refused, he attempted
3
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 4 of 33
to use pepper spray to “subdue” Raymond. (Id. at 97-98.) However, the pepper spray
failed and Raymond walked toward Deputy Hoock and grabbed his sunglasses and vest,
at which point Brian began grabbing Deputy Hoock as well. (Id. at 99.) As the three were
pushing and shoving each other, Brian yelled, “that’s it, we’re calling the police” and
Deputy Hoock broke apart from them and said, “That’s a good idea. Let’s call the East
Aurora P-D [sic].” (Id. at 100-01.)
Deputy Hoock, Raymond, and Brian ceased fighting and proceeded back toward
the driveway. (Id. at 102.) While the timeline is not clear from Deputy Hoock’s testimony,
it appears that after he radioed for backup, and before the backup arrived, Brian provided
his identification to Deputy Hoock and the service of process was completed. (See id. at
163-65; Docket No. 83-10 (“Criminal Appeal”) at 5.) Three Erie County Sheriff’s Deputies,
Defendants Weiss, Was, and Flowers, arrived on the scene soon after Deputy Hoock’s
radio call (id. at 102), while Bernice was still on the line with 911 attempting to get aid
from the East Aurora Police (Docket No. 81-16 (“Bernice Wierzbic EBT”) at 51). Deputy
Hoock pointed to Raymond and Brian and told the Sheriff’s Deputies that the men were
under arrest. (Hoock Testimony at 103.) East Aurora Police Officer, Defendant Braeuner,
arrived after the Sheriff’s Deputies. He was responding to a call from dispatch reporting
that the Sherriff’s Department was requesting backup at 49 Willis Road. (Docket No. 819 (“Braeuner Aff.”) at ¶ 7.) He affirmed that had no knowledge of the events that had
transpired there or why he was summoned as backup but, based on his experience,
“when an officer calls for backup, he is in trouble and needs immediate assistance.” (Id.)
Deputy Hoock testified that, when the Sheriff’s Deputies approached and
attempted to make an arrest, “Raymond started throwing punches.” (Hoock Testimony
4
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 5 of 33
at 104.) Deputy Hoock put Raymond in a headlock, but Raymond put Deputy Hoock in a
headlock as well, at which point the Deputy “felt like [he] was in trouble” and couldn’t
breathe. (Id.; see also Docket No. 81-17 (“Raymond Wierzbic EBT”) at 57-58.) Eventually
Raymond broke his hold, and the Sheriff’s Deputies subdued him with a functioning
canister of pepper spray. (Id. at 111.) Officer Braeuner states that, when he arrived, he
observed Deputies Hoock and Flowers in a verbal altercation with Raymond and heard
them tell Raymond that he was under arrest. (Braeuner Aff. at ¶ 8.) He confirmed that
Raymond began to fight with the Sheriff’s Deputies as they attempted to handcuff him,
and that he saw Brian and Bernice trying to pull the deputies away from Raymond. (Id.
at ¶¶ 8-9.) Brian and Bernice were yelling that they wanted the East Aurora Police, and
Officer Braeuner approached them and attempted to explain that he was an East Aurora
Police Officer. (Id. at ¶ 10.) He also attempted to move Bernice away from the area
where the Sheriff’s Deputies were struggling with Raymond. (Id.)
Bernice did not comply with Officer Braeuner’s instructions to stay clear of the
altercation and, as she tried to get past him, she struck or shoved him in the chest, after
which he arrested her. (Id.) He then helped restrain Raymond by assisting the Sheriff’s
Deputies to put his arm into a handcuff. (Id. at ¶ 11.) Officer Braeuner contends that
this—touching Raymond’s arm to assist in cuffing him—was his only physical contact with
Raymond. Plaintiffs do not dispute that Raymond physically resisted Deputy Hoock
during the arrest (see Raymond Wierzbic EBT at 57-58), that Bernice either hit or pushed
Officer Braeuner after he had led her away from the altercation (see Bernice Wierzbic
EBT at 51), and that Officer Braeuner’s only physical contact with Raymond was holding
5
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 6 of 33
his arm during the arrest. Chief Krowka was not present at the scene and did not confer
with or direct Officer Braeuner as to how to respond to the call. (Braeuner Aff. at ¶ 17.)
Raymond was charged with violations of New York Penal Law sections 205.30
(resisting arrest), 195.05 (obstructing governmental administration), 120.15 (menacing in
the 3rd degree), and 240.26 (harassment in the 2nd degree).
(Docket No. 83-10
(“Criminal Appeal”) at 2.) Brian was charged with violation of New York Penal Law
sections 120.00(1) (assault in the 3rd degree), 195.05 (obstructing governmental
administration), and 205.30 (resisting arrest). (Id.) Bernice was charged with violation of
New York Penal Law sections 205.30 (resisting arrest) and 195.05 (obstructing
governmental administration). (Id.) After a non-jury trial before Town of Aurora Judge
Jeffrey Markello on June 12 and 13, 2013, Raymond was convicted on all counts, Brian
was convicted of obstructing governmental administration, and Bernice was acquitted.
(Docket No. 83-9.) On December 4, 2013, Raymond and Brian were each sentenced to
a conditional discharge, fined $750.00 and ordered to perform 20 hours of community
service. (Criminal Appeal at 2.)
On September 30, 2014, Erie County Court Judge Michael Pietruszka reversed
the convictions. (Id.) Judge Pietruszka found that “Erie County Sheriff’s Deputy Michael
Hoock entered upon the [Wierzbics’] property in order to serve lawful process on
[Raymond], in accordance with his obligations under County Law Section 650(2) as
applied through PL Section 35.20(4)(b)(i).”4 (Id. at 5.) However, this lawful entry ended
Judge Pietruszka explains that: “PL Section 35.20(4)(b)(i) includes in the persons licensed or privileged
to be in buildings or upon premises police officers or peace officers acting in the performance of their duties,
and County Law Section 650(2) includes in the duties of sheriff the duty to serve all civil process.” (Criminal
Appeal at 5.)
4
6
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 7 of 33
when service was completed on Brian, which the Criminal Appeal suggests occurred
before Deputy Hoock’s backup arrived and the physical struggle ensued. (Id.)
The Deputy acknowledges that his duty was discharged in executing the
affidavit of service for the civil process he was sent out to serve . . . . He no
longer was privileged to remain upon the [Plainitffs]’ property under the
circumstances herein. At that point, the Deputy had no probable cause to
believe that anyone at the location was involved in illegal activities.
(Id. at 5-6.) He found that Deputy Hoock’s actions were not privileged pursuant to PL
Section 35.20(4)(b)(i) and that his remaining on the property “violated the [Plainitffs]’
constitutional rights.” (Id. at 6.) Judge Pietruszka granted the reversal because, inter
alia:
Once [Deputy Hoock’s] duty was discharged, the Deputy had no objective,
credible reason to remain [on Plaintiffs’ property]. The Deputy's actions
escalated the tension of the situation unnecessarily. He should have
completed his assignment and left the premises when requested.
(Id. (internal quotation marks omitted).)
The Erie County Sheriff’s Office maintains a manual pertaining to its civil process
division entitled, “County of Erie, Office of the Sheriff, Civil Process Division, Manual of
Standard Operating Procedure.” (Docket No. 84-8.) The manual instructs that process
servers should limit inquiries when attempting to locate a person and that, “There is no
way to compel a person to identify himself.” (Id. at 2) Further, “If you gain peaceful
entrance and are subsequently ordered off the premises after searching for the
defendant, you should leave immediately.” (Id. at 3) It also states, “Remember that you
are not acting under authority of a search warrant and could therefore be guilty of
trespass. Use discretion!” (Id.)
Plaintiffs filed this action on September 27, 2013. (Docket No. 1.)
7
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 8 of 33
III.
DISCUSSION
Plaintiffs allege both federal causes of action pursuant to § 1983 and intentional
torts under New York state law. The East Aurora Defendants have sought summary
judgment dismissing all claims against them; Plaintiffs and the Erie County Defendants
seek partial summary judgment.
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Id., 609 F.3d at 545
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986)). “A dispute regarding a material fact is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811 (2003) (quoting
Anderson, 477 U.S. at 248). A court must also “construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352
F.3d 775, 780 (2d Cir. 2003).
Plaintiffs have responded in opposition to certain of Defendants’ summary
judgment arguments and failed to respond to others. Although Plaintiffs did not explicitly
abandon the claims and defenses to which they failed to respond, this Court deems them
abandoned based on the inferences that “may be fairly drawn from the papers and
8
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 9 of 33
circumstances viewed as a whole.” Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir.
2014). Further, Plaintiffs have not complied with Local Rule 56(a)(2). Plaintiffs filed no
response to the Erie County Defendants’ Rule 56 Statements of Facts. (See Docket No.
92.)
They filed a limited response to the East Aurora Defendants but, rather than
addressing each paragraph of the East Aurora Defendants’ Statement of Facts (as the
rule dictates), their response consists of a 247-page court transcript. (See Docket No.
90.) Plaintiffs’ failures to comply with the local rules do not call for the Court “to perform
an independent review of the record to find proof of a factual dispute.” Amnesty Am. v.
Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (citations omitted); see Covelli v.
Nat'l Fuel Gas Distrib. Corp., 2001 WL 1823584, at *1 (W.D.N.Y. 2001) (holding that the
district court “may, but is not required to, search the record for evidence which the party
opposing summary judgment fails to point to in his [Local Rule 56] statement”).
Defendants must still meet their burden to establish that summary judgment is
appropriate under the law and that no material issue of fact remains for trial. See Vt.
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (“If the evidence
submitted in support of the summary judgment motion does not meet the movant’s burden
of production, then ‘summary judgment must be denied even if no opposing evidentiary
matter is presented.’” (emphasis in original) (quoting Amaker v. Foley, 247 F.3d 677, 681
(2d Cir. 2001)).
However, this Court deems the Defendants’ Statements of Facts
admitted to the extent that they are supported by admissible evidence and not
contradicted by evidence of which this Court has notice. Compare Holtz v. Rockefeller &
Co., 258 F.3d 62, 73-74 (2d Cir. 2001) (“[W]here there are no[ ] citations or where the
cited materials do not support the factual assertions in the [Local Rule 56] Statements,
9
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 10 of 33
the Court is free to disregard the assertion” and review the record independently.), with
Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (Rule 56 “does
not impose an obligation on a district court to perform an independent review of the record
to find proof of a factual dispute.”), and Monahan v. N.Y.C. Dep't of Corrections, 214 F.3d
275, 292 (2d Cir. 2000) (“While the trial court has discretion to conduct an assiduous
review of the record in an effort to weigh the propriety of granting a summary judgment
motion, it is not required to consider what the parties fail to point out.”) (quotation marks
omitted).
A.
The Erie County Sheriff’s Department and East Aurora Police Department
Defendants move for summary judgment as to all claims against the Erie County
Sheriff’s Department and East Aurora Police Department on the grounds that they are
sub-units or agencies of their municipalities and not subject to suit. Plaintiffs do not
oppose this motion. “Under New York law, departments which are merely administrative
arms of a municipality, do not have a legal identity separate and apart from the
municipality and cannot sue or be sued.” Hall v. City of White Plains, 185 F. Supp. 2d
293, 303 (S.D.N.Y. 2002); see also Kamholtz v. Yates County, No. 08-CV-6210, 2008
WL 5114964, at *8-9 (W.D.N.Y. Dec. 3, 2008) (dismissing claims against the Yates
County Sheriff's Department on the ground that a municipality's police department is not
subject to suit because it is considered an administrative unit of the county); Baker v.
Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (“A police department cannot sue or be
sued because it does not exist separate and apart from the municipality and does not
have its own legal identity.”). Accordingly, the motions are granted and all claims against
the Erie County Sheriff’s Department and East Aurora Police Department are dismissed.
10
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 11 of 33
B.
Federal Law Claims
Plaintiffs bring federal claims under 42 U.S.C. § 1983, alleging eight causes of
action:
(1) excessive force; (2) malicious prosecution; (3) failure to intervene; (4)
conspiracy; (5) violation of First Amendment rights; (6) violation of Fifth Amendment
rights, (7) false arrest, and (8) false imprisonment. Section 1983 imposes civil liability
upon persons who, acting under color of state law, deprive an individual of rights,
privileges, or immunities secured by the Constitution and laws. See 42 U.S.C. § 1983.
The section does not itself provide a source of substantive rights, but instead provides
the mechanism by which a plaintiff may seek vindication of federal rights conferred
elsewhere. Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989).
1. Erie County
Defendant Erie County argues that the federal claims against it should be
dismissed because Plaintiffs have failed to establish municipal liability under § 1983.
“The Supreme Court has made clear that ‘a municipality cannot be made liable’ under §
1983 for acts of its employees ‘by application of the doctrine of respondeat superior.’”
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (quoting Pembaur v. City of
Cincinnati, U.S. 469, 478, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986)). In order to maintain
a § 1983 action against a municipal defendant, a plaintiff must identify a municipal “policy
or custom” from which the alleged injury arose. Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978). Plaintiffs
do not oppose this motion, and their claims cite only policies intended to avoid the type
of misconduct alleged here. (See Docket No. 84-8, County of Erie, Office of the Sheriff,
11
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 12 of 33
Civil Process Division, Manual of Standard Operating Procedure). Accordingly, Erie
County’s motion for summary judgment is granted and the § 1983 claims against it are
dismissed.
2. Sheriff Howard and Chief Krowka
Defendants argue that the § 1983 supervisory liability claims against Sheriff
Howard and Chief Krowka must also be dismissed. “It is well settled in this Circuit that
personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)
(citation and quotation marks omitted). In other words, “supervisor liability in a § 1983
action depends on a showing of some personal responsibility, and cannot rest on
respondeat superior.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Plaintiffs
do not oppose the motions, and there is no allegation that Sheriff Howard or Chief Krowka
had any personal involvement in the alleged violations. Accordingly, the motions for
summary judgment are granted and the § 1983 claims against Sheriff Howard and Chief
Krowka are dismissed.
3. Official Capacity Claims
Defendants argue that all federal claims against individual defendants in their
official capacities should be dismissed as duplicative. The Second Circuit has endorsed
the dismissal of § 1983 claims against individual officers in their official capacity,
“[b]ecause the claim against [individuals] in their official capacity is essentially a claim
against the [municipality].” Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001);
Castanza v. Town of Brookhaven, 700 F. Supp. 2d 277, 284 (E.D.N.Y. 2010) (“Since the
Town is named in the Complaint, the claims against [the d]efendants, in their official
12
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 13 of 33
capacities, are dismissed as duplicative and redundant.”). Accordingly, because the
federal claims against Defendants in their official capacities are duplicative of the claims
against the municipalities, the motions for summary judgment are granted and the claims
are dismissed.
4. First and Fifth Amendment Claims
All Defendants have moved for dismissal of Plaintiffs’ First Amendment claims on
the grounds that Plaintiffs’ speech was not actually chilled by the encounter. See Curley,
268 F.3d at 73. They have also moved for dismissal of the Fifth Amendment claims on
the grounds that such claims may only be brought against federal, not state, officials. See
Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002).
Plaintiffs do not oppose these arguments. Accordingly, Defendants’ motions for summary
judgment are granted the First and Fifth Amendment claims are dismissed.
5. Officer Braeuner
Officer Braeuner, who arrived at the Plaintiffs’ property when the Sheriff’s Deputies
were already at the scene, seeks summary judgment on the federal claims against him,
arguing that they should be dismissed because his actions were reasonable and
appropriate based on the circumstances.
Excessive Force
Officer Braeuner moves for summary judgment as to the claim that he used
unreasonable and excessive force during the events on July 2, 2012. Whether the force
used to effect an arrest is “reasonable” or “excessive” turns on “a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against
the countervailing government interests at stake.” Graham, 490 U.S. at 396 (internal
13
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 14 of 33
quotation marks omitted). A number of factors must be considered in this analysis,
including “the need for the application of force, the relationship between the need and the
amount of force that was used, the extent of injury inflicted, and whether force was applied
in a good faith effort to maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,
251-52 (2d Cir. 2001) (internal quotation marks omitted).
Here, the only allegation of physical contact between Officer Braeuner and the
Plaintiffs is contact incident to the arrest of Bernice and holding Raymond’s arm while
assisting the Sheriff’s Deputies in handcuffing him. (See Braeuner Aff. at ¶¶ 10-11.) In
both instances, there was a reasonable relationship between the need for force and the
amount of force used. It is undisputed that Bernice had either struck or shoved Officer
Braeuner in an attempt to enter the altercation between Raymond and the Sheriff’s
Deputies. (Id. at ¶ 10.) Further, there is no dispute that Officer Braeuner observed
Raymond violently resisting arrest by the Deputies (id. at ¶ 11), including by overpowering
Deputy Hoock and placing him in a headlock. (Hoock Testimony at 104; Raymond
Wierzbic EBT at 57-58.) There is no suggestion that Officer Braeuner’s physical contact
with Plaintiffs, which is alleged to have been minimal, was actuated by malice or a desire
to cause harm. Accordingly, the Johnson factors weigh against Plaintiffs, who “complain
basically of the kind of de minimis physical contact common to virtually every custodial
arrest.” Figueroa v. Mazza, 825 F.3d 89, 105-06 (2d Cir. 2016) (citing Graham, 490 U.S.
at 396 (“[T]he right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.”)).
14
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 15 of 33
This Court is not persuaded by Plaintiffs’ argument that the force used on
Raymond was inherently unreasonable because Officer Braeuner did not know why the
arrest was made or whether probable cause existed. The undisputed facts show that
Officer Braeuner’s only knowledge when he came on the scene was that an officer was
in trouble, and that he observed an altercation between Deputy Hoock and Raymond.
Under these circumstances, Officer Braeuner reasonably believed that the force he used
was necessary “to maintain or restore discipline.” See Johnson, 239 F.3d at 252. See
also Garcia v. Greco, No. 05-CV-9587, 2010 WL 446446, at *7 (S.D.N.Y. Feb. 9, 2010)
(“The balancing inquiry for an excessive force claim may . . . take resistance to an arrest
into account as a highly probative fact.” (internal quotation marks and citation omitted));
Torres v. Dennis, No. 10-CV-0803 JS AKT, 2013 WL 2898142, at *4 (E.D.N.Y. June 13,
2013) (no excessive force where “Plaintiff had been actively resisting arrest and
essentially putting up a physical fight with the officers”). Accordingly, the motion for
summary judgment is granted and the excessive force claim against Officer Braeuner is
dismissed.
Failure to Intercede
Officer Braeuner further moves for summary judgment as to the claim that he failed
to stop the Sheriff’s Deputies alleged violation of Raymond’s constitutional rights. “[A]ll
law enforcement officials have an affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement officers in their presence.”
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). As such, liability may attach on a
failure to intervene theory where “(1) the officer had a realistic opportunity to intervene
and prevent the harm; (2) a reasonable person in the officer’s position would know that
15
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 16 of 33
the victim's constitutional rights were being violated; and (3) the officer does not take
reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512
(S.D.N.Y. 2008) (citation omitted); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123,
129 (2d Cir. 1997).
Although Officer Braeuner did not intervene to stop the force being used on
Raymond, there is no evidence that an objectively reasonable officer in his position would
have perceived a constitutional violation and a need for intervention. Plaintiffs present no
evidence to dispute the facts put forth by Officer Braeuner: that he arrived while Raymond
was involved in an altercation with the Sheriff’s Deputies, and that he had no basis to
believe that the arrest was illegal or that the deputies’ actions were otherwise
unconstitutional. (Braeuner Aff. at ¶¶ 7-9.) Given the undisputed fact that Raymond was
actively fighting the Sheriff’s Deputies, including by putting Deputy Hoock in a headlock,
it was objectively reasonable for Officer Braeuner to believe that the suspect required
some degree of restraint or incapacitation. See Mesa v. City of New York, No. 09 CIV.
10464 JPO, 2013 WL 31002, at *20 (S.D.N.Y. Jan. 3, 2013) (objectively reasonable to
believe that plaintiff needed to be restrained when defendants believed that she had
lunged at a fellow officer); Chepilko v. City of New York, No. 06-CV-5491 ARR LB, 2012
WL 398700, at *9 (E.D.N.Y. Feb. 6, 2012) (objectively reasonable to believe that “plaintiff
posed a threat to the officers or surrounding crowd” where late-arriving officer observed
arresting officer’s apparent injury).
Plaintiffs argue that Officer Braeuner knew or had reason to know that the arrest
was improper because Deputy Hoock was driving a “civil” sheriff’s vehicle, because he
had identified himself as a civil officer when he called for backup, and because Plaintiffs
16
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 17 of 33
had called East Aurora Police seeking help when Deputy Hoock began trying to arrest
Raymond. Officer Braeuner argues that the dispatcher he spoke with did not identify the
call for backup as having come from a “civil officer” and that, based on his experience,
“when an officer calls for backup, he is in trouble and needs immediate assistance.”
Braeuner Aff. at ¶ 7. The dispute over Officer Braeuner’s knowledge that Deputy Hoock
was acting in a civil capacity need not be resolved because it does not raise a material
question as to whether he could have known that the arrest was unconstitutional.
Although Deputy Hoock was serving the duties of a civil officer, he maintained the
authority to make criminal arrests when an individual violated the law. Further, Officer
Braeuner was not obligated to investigate Plaintiffs’ claims of innocence while the
altercation was unfolding. Once a police officer has a reasonable basis for believing there
is probable cause, he is not required to explore and eliminate every theoretically plausible
claim of innocence before making an arrest. Ricciuti, 124 F.3d at 128 (citing Baker v.
McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979)).
Officer Braeuner entered a situation where the Sheriff’s Deputies appeared to be in
danger, and attempted to contain that danger. Whether or not that perception was correct
in hindsight (or whether the deputies caused the dangerous situation in the first place), it
was objectively reasonable for Officer Braeuner to allow the arrest to take place without
attempting to intervene where the undisputed evidence shows that an officer appeared to
be threatened. See Mesa, 2013 WL 31002, at *20. Accordingly, the motion for summary
judgment is granted and the failure to intervene claim is dismissed.
17
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 18 of 33
False Arrest and False Imprisonment
Officer Braeuner further moves for summary judgment as to the claims for false
arrest and false imprisonment. To prevail on a false arrest claim, a plaintiff must prove
that: “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent to the confinement and (4) the
confinement was not otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110,
119 (2d Cir.1995); see also Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012). The elements are essentially the same for false imprisonment. See Kilburn v. Vill.
of Saranac Lake, 413 F. App’x 362, 363 (2d Cir. 2011) (analyzing the claims identically
because, “under New York law, the claim is identical to a false arrest claim, and the
federal claim looks to the elements of the state claim” (internal citations omitted)). “The
existence of probable cause to arrest constitutes justification and is a complete defense
to an action for false arrest” and false imprisonment. Id. (quoting Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996)). The parties here do not dispute the material facts, therefore
the existence of probable cause may be decided as a matter of law. See Walczyk v. Rio,
496 F.3d 139, 157 (2d Cir. 2007).
“A police officer has probable cause for an arrest when he has ‘knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that the person to be arrested has
committed or is committing a crime[.]’” Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir.
2013) (quoting Weyant, 101 F.3d at 852). This Court “must consider those facts available
to the officer at the time of the arrest and immediately before it, as probable cause does
not require absolute certainty” and “should look to the totality of circumstances.”
18
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 19 of 33
Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012) (quoting Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006)). It is undisputed that, when Officer Braeuner arrived, he
observed Raymond in a verbal altercation with the Sheriff’s Deputies, and that this soon
escalated into a physical altercation. It is also undisputed that Bernice5 either struck or
shoved Officer Braeuner in an attempt to enter the physical altercation between Raymond
and the Sheriff’s Deputies. Based on these circumstances, it was reasonable for Officer
Braeuner—who was the last law enforcement official to arrive and is not alleged to have
any knowledge of what took place prior to his arrival—to believe that probable cause
existed to arrest both Raymond and Bernice. See Mesa, 2013 WL 31002, at *11-12
(where plaintiff made “forcible contact” with defendant police officer's body, this was
sufficient that “a reasonable officer could have believed that probable cause existed to
arrest [plaintiff] for at least one of the misdemeanor offenses” of “harassment, resisting
arrest, and disorderly conduct,” even where all three were ultimately dismissed against
plaintiff). Again, Officer Braeuner was not required to “explore and eliminate every
theoretically plausible claim of innocence before making an arrest,” nor was he required
to believe Plaintiffs’ claims that the arrest was improper. Ricciuti, 124 F.3d at 128 (finding
that the police officer was entitled to qualified immunity for assault arrest despite
defendant telling the officer he was innocent); see also Krause v. Bennett, 887 F.2d 362,
372 (2d Cir. 1989) (unreasonable and impractical to require that arrestee’s innocent
explanation be proven wrong or contradicted before arrest can be made).
5
Officer Braeuner argues that he arrested only Bernice, and not Raymond. Although there may be factual
issues as to whether Officer Braeuner’s assistance in handcuffing Raymond was sufficient to constitute an
act of confinement, this Court need not address that issue because Officer Brauner had probable cause to
act in both arrests.
19
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 20 of 33
Without any factual allegations suggesting that Officer Braeuner could have known
of the prior alleged constitutional violations and torts, he was “entitled—indeed obliged—
to assess for himself the risks presented from the totality of the circumstances in
attempting to accommodate the interests of all concerned.” Zalaski v. City of Hartford,
723 F.3d 382, 394 (2d Cir. 2013) (noting that “nothing in probable cause jurisprudence
requir[es an] officer to accept suspect's assertion of innocence at face value”).
Accordingly, Officer Braeuner’s motion to for summary judgment on the false arrest and
false imprisonment claims is granted and those claims are dismissed.6
Malicious Prosecution, Conspiracy, and Equal Protection
Finally, Officer Brauener moves for summary judgment as to of Plaintiffs claims for
malicious prosecution, conspiracy, and violations of equal protection under § 1983.
Plaintiffs do not oppose the motion.
Officer Braeuner argues that the malicious
prosecution claim should be dismissed because Plaintiffs have not alleged actual malice,
see Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (to succeed on a malicious
prosecution claim under § 1983, a plaintiff must show that (1) the defendant commenced
or continued a criminal proceeding against him; (2) the proceeding was terminated in the
plaintiff's favor; (3) there was no probable cause for the proceeding; and (4) the
proceeding was instituted with malice), that the conspiracy claim should be dismissed
because Plaintiffs have not alleged that he was involved in any plan with the Sheriff’s
Deputies, see Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (conspiracy claim
However, this Court is not persuaded by Officer Braeuner’s argument that the finding of guilt by the Town
of Aurora Court demonstrates that probable cause existed for Raymond and Brian’s arrests. That
conviction was reversed on appeal, and “a judgment that has been reversed, with instructions that the
matter be dismissed, is null and void.” Weyant, 101 F.3d at 854 (finding that district court erred in relying
on reversed conviction as evidence of probable cause). Further, having dismissed all federal claims against
Officer Braeuner, this Court does not address his qualified immunity argument.
6
20
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 21 of 33
under § 1983 requires evidence that “(1) an agreement between two or more state actors
or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages”), and that the equal protection claim should be dismissed because Plaintiffs
have failed to allege that they were treated differently than others who were similarly
situated. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
Accordingly, the motion is granted, and all federal claims against Officer Braeuner are
dismissed.
C.
State Claims
Plaintiffs bring seven claims under New York state law: 1) false arrest; 2) false
imprisonment; 3) assault; 4) battery; 5) intentional infliction of emotional distress; 6)
negligent hiring and retention; 7) negligent training and supervision.7 Defendants have
moved for summary judgment dismissing the claims against them.
1. Statute of Limitations
Defendants move for dismissal Plaintiffs’ state-law claims on the grounds that they
are time-barred. Federal courts apply state statutes of limitations to state-law claims, see
Vincent v. Money Store, 915 F. Supp. 2d 553, 560-61 (S.D.N.Y. 2013) (stating that it
makes no difference if the state-law claims are presented in federal court based on
diversity jurisdiction or supplemental jurisdiction), and apply state notice of claim statutes
to state-law claims as well. See Reyes v. City of New York, 992 F. Supp. 2d 290, 300
(S.D.N.Y. 2014).
7
Plaintiffs have moved for summary judgment as to the state-law claim of trespass, which was not listed
together with the other causes of action in the Complaint. This Court addresses that claim below.
21
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 22 of 33
Defendants contend that the statute of limitations for Plaintiffs’ state-law claims is
one year, citing N.Y. C.P.L.R. § 215(3), which provides that actions for “assault, battery,
false imprisonment, [or] malicious prosecution” shall be commenced within one year.
However, the Second Circuit has stated that New York’s General Municipal Law controls
when a plaintiff sues a city for tortious conduct, and it also controls those claims against
any employee of a city “if the municipality is required to indemnify the defendant pursuant
to the General Municipal Law or any other statutory provision and is therefore ‘the real
party in interest.’” Conte v. Cty. of Nassau, 596 Fed. App’x 1, 5 (2d Cir. 2014) (quoting
Ruggiero v. Phillips, 292 A.D.2d 41, 44, 739 N.Y.S.2d 797, 800 (4th Dep’t 2002)). General
Municipal Law § 50-j provides that a city is “liable for . . . any duly appointed police officer
of such municipality, authority or agency for any negligent act or tort, provided such police
officer, at the time of the negligent act or tort complained of, was acting in the performance
of his duties and within the scope of his employment.” See also LaGrange v. Ryan, 142
F. Supp. 2d 287, 295 (N.D.N.Y. 2001) (stating that notice of claim requirements are not
limited to just negligence claims but must also be served for “intentional tort actions
against police officers”). The one year and 90 day statute of limitations therefore governs
Plaintiffs’ state-law claims against Erie County, as well as the state-law claims against the
Erie County Sheriff’s Department and East Aurora Police Department employees in their
official capacities.
However, since General Municipal Law § 50-i governs only claims against
municipal corporations and their employees in their official capacities, see Conte, 596
Fed. App’x at 5, the claims against the Erie County Sheriff’s Department and East Aurora
Police Department employees in their individual capacities are governed by the one-year
22
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 23 of 33
statute of limitations in C.P.L.R. § 215(1). The incident at issue occurred on July 2, 2012.
Plaintiffs filed suit on September 23, 2013, approximately one year and 83 days later.
Accordingly, the motion for summary judgment dismissing the state-law claims against
the Defendants in their individual capacities is granted; however, the state-law claims may
move forward against the municipalities and against the individuals in their official
capacities.
2. State Claims Against the East Aurora Defendants
Officer Braeuner argues that the false arrest, false imprisonment, assault, battery,
and malicious prosecution claims must be dismissed because they are substantially
similar to the claims made under § 1983. Plaintiffs did not oppose Officer Braeuner’s
arguments as to malicious prosecution and intentional infliction of emotional distress, nor
do they otherwise distinguish their state-law claims from the § 1983 claims that this Court
has already dismissed.
Because the claims are substantially similar, and because
Plaintiffs do not oppose this motion, Officer Braeuner’s motion for summary judgment
dismissing the remaining state-law claims against him is granted.
Because all the claims against Officer Braeuner have been dismissed, the statelaw claims against Chief Krowka must also be dismissed. See Harsco Corp. v. Segui, 91
F.3d 337, 349 (2d Cir.1996) (“there being no surviving underlying theory of liability, the
respondeat superior claims were also properly dismissed”).8
3. Erie County
Erie County argues that the state-law claims against it must be dismissed because
it is not liable for acts of its employees. In Villar v. County of Erie, New York’s Fourth
8
Because the claims against the East Aurora Defendants have been dismissed, this Court does not address
their remaining arguments.
23
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 24 of 33
Department affirmed the principle that, in the absence of a local law imputing such
responsibility, a county may not be held responsible for the negligent acts of local law
enforcement pursuant to a theory of respondeat superior. See 126 A.D.3d 1295, 5
N.Y.S.3d 747 (4th Dep't 2015); see also D'Amico v. Correctional Medical Care, Inc., 120
A.D.3d. 956, 991 N.Y.S.2d 687 (4th Dep't 2014); Mosey v. County Of Erie, 117 A.D.3d
1381 (4th Dep't 2014); Trisvan v. County of Monroe, 26 A.D.3d 875,984 N.Y.S.2d 706
(4th Dep't 2006). Erie County has not adopted a local rule carving out an exception
holding it liable for the acts of the Sheriff or Sheriff's office employees, see New York
State Constitution, Article XIII, Section 13[a], and a county cannot be held liable on the
theory of respondeat superior for the negligent acts of either the sheriff or sheriff's
deputies absent a legislative assumption of responsibility. Marashian v. City of Utica, 214
A.D.2d 1034, 626 N.Y.S.2d 646 (4th Dep't 1995) (“The 1989 amendment to the New York
Constitution, article XIII, § 13(a) merely allows a county to accept responsibility for the
negligent acts of the Sheriff; it does not impose liability upon the county for the acts of the
Sheriff or his deputies on a theory of respondeat superior”); D'Amico, 120 A.D.3d at 959.
Plaintiffs argue that this Court should overlook precedent and find that Erie County
is nevertheless liable for actions taken by the Sheriff’s Deputies. This Court disagrees.
Based on the well-established rule set forth in Villar, the state-law claims against Erie
County are dismissed.
4. Sheriff Howard
Sheriff Howard argues that the state-law claims against him must be dismissed
because “a sheriff cannot be held personally liable for the acts or omissions of his
deputies while performing criminal justice functions, and that this principle precludes
24
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 25 of 33
vicarious liability for the torts of a deputy.” D’Amico, 120 A.D.3d at 958 (internal quotation
omitted).
Plaintiffs argue that the state-law claims should go forward, because the
Sheriff’s Deputies were performing a civil function. Sheriff Howard acknowledges that a
sheriff can be held liable for torts committed during an employee’s performance of civil
functions, but argues that the allegations here arise from the execution of criminal duties.
In Rager v. McCloskey, 305 N.Y. 75, 80, 111 N.E.2d 214, 217 (N.Y. 1953), a
sheriff’s deputy lawfully entered plaintiff’s office in order to serve process, but, not finding
plaintiff, refused to leave and remained until he was removed by police. The Court of
Appeals held that the sheriff could be held liable for the civil trespass of his deputy
because, “[b]y ‘the common law,’ . . . ‘a sheriff is liable in trespass for the acts of his
deputy committed in the attempt to execute process, although without his direction or
recognition.’” Id. (quoting People ex rel. Kellogg v. Schuyler, 4 N.Y. 173, 181 (N.Y.1850));
see also Pond v. Leman, 1865 WL 3782 (N.Y. Gen. Term. 1865) (“A sheriff is liable for
all the acts of his deputy, official in their character, in executing process, whether he knew
the deputy had the process or not.”). This standard is no less applicable here. Deputy
Hoock was dispatched on a civil function, and is alleged to have committed trespass in
the exercise of that function. Sheriff Howard’s motion for summary judgment is therefore
denied as to the trespass claim.
However, once Deputy Hoock radioed for backup and told Plaintiffs that they were
under arrest, he began executing criminal functions. Deputy Hoock’s actions, including
radioing for backup and placing Plaintiffs under arrest, are not actions that can be
undertaken by a private citizen. Further, the arrest of the Plaintiffs and the alleged torts
committed by Hoock and the other Deputies incident to that arrest have been found to be
25
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 26 of 33
the type for which a Sheriff is not liable. See, e.g., Green v. Fulton Cty., 123 A.D.2d 88,
89, 511 N.Y.S.2d 150, 152 (3d Dep’t 1987) (sheriff is not “vicariously liable for the torts of
a Deputy emanating from the performance of a criminal justice function”). Accordingly,
all state-law claims against Sheriff Howard are dismissed except Plaintiffs’ trespass claim.
D.
Punitive Damages
Finally, Defendants argue that claims for punitive damages are not recoverable
against a municipality or against municipal employees in their official capacities. Punitive
damages are generally disallowed against municipalities and against municipal
employees in their official capacities, see New Windsor Volunteer Ambulance Corps, Inc.
v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006), and Plaintiffs do not oppose this portion of
the motion, stating that they seek punitive damages only as to Defendants in their
individual capacities. Accordingly, the motion is granted and punitive damages are
dismissed as to the municipality and official capacity claims.
E.
Plaintiffs’ Motion
Plaintiffs have moved for summary judgment against all Defendants9 on the claim
of trespass. Defendants contend that the motion should be denied because trespass is
not a named cause of action in the Complaint, and “[m]otions for summary judgment
should be decided on the claims as pled, not as alleged in motion papers.” N. Shipping
Funds I, L.L.C. v. Icon Capital Corp., 998 F. Supp. 2d 301, 326 (S.D.N.Y. 2014). Plaintiffs
respond that the Complaint contains allegations sufficient to give notice of the cause of
action, even if the cause of action is not expressly named.
This Court has already found that the Erie County Sheriff’s Department and East Aurora Police
Department are not subject to suit.
9
26
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 27 of 33
“The function of the pleadings is to give opposing parties notice of the facts on
which the pleader will rely, and, in the absence of prejudice to the opposing party, the
court may allow the pleadings to be amended to conform them to the evidence at any
time, even after judgment.” Van Alstyne v. Ackerley Grp., Inc., 8 F. App’x 147, 154-55
(2d Cir. 2001) (citing Fed. R. Civ. P. 15(b)10); In re Schwartz, 36 B.R. 355, 357 (Bankr.
E.D.N.Y. 1984) (“[W]hen deciding a motion for summary judgment the court may evaluate
not just the issues presently tendered by the pleadings but those which can reasonably
be raised in an amended pleading.”). “Thus, an issue raised for the first time in a motion
for summary judgment may start the amendment process.” In re Kern, 567 B.R. 17, 2728 (Bankr. E.D.N.Y. 2017) (citing In re Bennett Funding Group, Inc., 220 B.R. 743, 75253 (Bankr. N.D.N.Y. 1997); Seaboard Terminals Corp. v. Standard Oil Co., 104 F.2d 659
(2d Cir. 1939)). “Once a district court has properly construed a motion for summary
judgment as seeking leave to amend a pleading, the question of whether leave should be
granted is controlled by the same principles that govern express motions to amend a
pleading.” Chartier v. Matthews Assocs., No. 93 CIV. 1212 (PKL), 1994 WL 582938, at
*2 (S.D.N.Y. Oct. 20, 1994) (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
Cir. 1993)). That is, the court should allow the pleadings to be amended to conform to
10
Although Rule 15(b) refers to amendments of the complaint during or after trial, courts have applied Rule
15(b) to conform pleadings to the proof offered at summary judgment. See, e.g., Clomon v. Jackson, 988
F.2d 1314, 1323 (2d Cir. 1993) (“[T]he undisputed facts as presented on the summary judgment motion
served as a basis to deem the complaint amended to conform with the proof pursuant to Fed. R. Civ. P.
15(b).”); M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F. Supp. 2d 205, 213 n. 8 (E.D.N.Y. 2010) (deeming
the complaint amended under Rule 15(b) to conform with the evidence presented on the summary judgment
motion); Regent Ins. Co. v. Storm King Contracting, Inc., No. 06-CV-2879, 2008 WL 563465, at *13-14
(S.D.N.Y. Feb. 27, 2008) (applying Rule 15(b) standard where plaintiff sought to amend its claims at
summary judgment to conform its pleadings to additional evidence revealed through discovery); In re Kern,
567 B.R. 17, 27 (Bankr. E.D.N.Y. 2017) (noting that “even if Plaintiffs' Complaint did not adequately allege”
certain facts, “the Court may conform the pleadings to the evidence before it and deem the Complaint
amended by the summary judgment pleadings”).
27
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 28 of 33
the evidence if such amendment will not prejudice the other party. See Fed. R. Civ. P.
15(b).
To plead a claim for trespass under New York law, Plaintiffs must allege an
“intentional entry by defendants on to plaintiffs’ land and the wrongful use without
justification or consent.” Matthews v. Malkus, 377 F. Supp. 2d 350, 359 (S.D.N.Y. 2005).
“[O]ne who lawfully enters upon land but remains thereon after being requested to leave
is [also] subject to liability for trespass.” New York State Energy Research & Dev. Auth.
v. Nuclear Fuel Servs., Inc., 561 F. Supp. 954, 967 (W.D.N.Y. 1983). The first paragraph
of the Complaint states:
This civil rights action challenges the constitutionality of the Erie County
Sheriff’s Department’s practice of serving civil process on the private
property of civil litigants by coming onto and/or remaining on private
property after being instructed by the property owner to leave the property
and then pursuing questioning and criminal proceedings without probable
cause.
(Docket No. 1 at ¶ 1 (emphasis added.) This Court is persuaded that this, taken together
with the other allegations in the Complaint that allege Deputy Hoock entered Plaintiffs’
property and remained after being asked to leave,11 sets forth facts sufficient to state a
claim for trespass and put Defendants on notice of a trespass claim, even if trespass was
not a named cause of action. Accordingly, there is no basis for Defendants to claim
surprise or prejudice by the trespass claim and this Court will deem the Complaint
amended to include trespass as a cause of action.
Additional allegations include id. at ¶ 17 (“Brian . . . advised Deputy Hoock that he would accept the
papers and that this was private property and [Deputy Hoock] had to leave as he was trespassing. . . .
Brian informed Deputy Hoock . . . that this was private property and the deputy needed to leave.); id. at ¶
18 (“Instead of leaving the deputy attempted to ask Defendant Raymond Wierzbic who he was. Raymond
told him that unless he has a warrant he needs to get off the property.”)
11
28
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 29 of 33
Defendants further argue that the trespass claim fails because Deputy Hoock’s
entry to Plaintiffs’ property was privileged by virtue of his status as a law enforcement
official. See People v. Czerminski, 94 A.D.2d 957, 957-58, 464 N.Y.S.2d 83 (4th Dep't
1983) (policeman’s entry onto private property is privileged “[i]f the purpose is the
performance of his public duty”). Plaintiffs do not dispute that the entry was legal, but
argue that Deputy Hoock’s privilege ended when he was instructed to leave. Although
Defendants contend that Deputy Hoock had the privilege to remain on the property and
that Plaintiffs erred by failing to “simply identify themselves and accept the Subpoena and
Restraining Notice that Deputy Hoock was there to serve” (Docket No. 89-5 at 10), they
cite no basis for dismissing a trespass claim where a property owner instructed a process
server to leave and the process server failed to do so.
Further, as noted above, the New York Court of Appeals has held that a deputy
sheriff who lawfully enters a property to serve process may be liable for civil trespass
when he refuses to leave that property. Rager, 305 N.Y. at 80, 111; see also Jones v.
Maples, No. 131739/93, 1999 WL 1427659, at *3 (N.Y. Sup. Ct. July 12, 1999) (citing
Rager and noting that “a person can be found liable for civil trespass by remaining on
another's property without permission even though the initial entry was permitted or
privileged”); United States v. Carloss, 818 F.3d 988, 1006 (10th Cir.) (“state officials no
less than private visitors could be liable for trespass when entering [a property] without
the homeowner’s consent”), cert. denied, 137 S. Ct. 231, 196 L. Ed. 2d 178 (2016). On
Deputy Hoock’s own testimony, that would appear to be the situation here. Deputy Hoock
testified that the Plaintiffs immediately ordered him to leave. (Id. at 87.) On crossexamination, when asked why he did not comply with the Plaintiffs’ requests, Deputy
29
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 30 of 33
Hoock testified: “It wasn't initially said to me, right away. And, the pliers became an
incident at that point.” (Id. at 139.) This appears to be at odds with his earlier testimony
that Brian’s initial response to him was an instruction to get out (id. at 87), and that he did
not notice the pliers until after he had been instructed to leave several times (id. at 89).
He later confirmed that Raymond “told [him] numerous times to get off the property, even
before he picked up the pliers.” (Id. at 166.) Accordingly, by Deputy Hoock’s own
admission, he remained on the property after he had been instructed to leave.
Deputy Hoock testified that it was appropriate to remain on the property after he
had been told to leave in order to complete service. But “[a] trespasser, to be such, need
not intend harm to or unlawful interference with the other's property and may in good faith
believe that he or she or it is in some way entitled to enter or remain upon the property.”
New York State Energy Research & Dev. Auth., 561 F. Supp. at 974; see also Oliver v.
United States, 466 U.S. 170, 183, 104 S. Ct. 1735, 1744, 80 L. Ed. 2d 214 (1984) (noting
that “the law of trespass confers protections from intrusion by others far broader than
those required by Fourth Amendment interests”). Further, as found by Erie County Court
Judge Pietruszka, who reversed Raymond and Brian’s criminal convictions, Deputy
Hoock completed service on Brian and, “[a]t the point that . . .Brian was served, the
Deputy's obligation”—and his justification for entry onto Plaintiffs’ property—“was
discharged.” (Criminal Appeal at 5.) Judge Pietruszka held that Deputy Hoock’s actions
were a violation of Plaintiffs’ constitutional rights under People v. De Bour, 40 N.Y.2d 210,
352 N.E.2d 562 (1976) because he “failed to give any articulable basis to remain on the
[Plaintiffs]’ property and approach [ ]Raymond.” (Id. at 6.)
30
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 31 of 33
This Court therefore finds that Plaintiffs have proven that Deputy Hoock remained
on the property at 49 Willis Road after being asked to leave, and that his remaining on
the property was not justified or privileged. As noted above, Sheriff Howard may also be
liable for trespass under the theory of respondeat superior, but there is no trespass liability
as to the remaining Sheriff’s Deputies or Officer Braeuner. “[L]aw enforcement personnel
acting lawfully in the furtherance of their duty are excused from what may be otherwise
trespassory acts.” Hand v. Stray Haven Humane Soc. & S.P.C.A., Inc., 21 A.D.3d 626,
628, 799 N.Y.S.2d 628 (3d Dep’t 2005). Because the other law enforcement personnel
were summoned by Deputy Hoock and had reason to believe that exigent circumstances
for entry existed, their entry onto the property was privileged.
However, the motion cannot be granted as to Deputy Hoock and Sheriff Howard
because Plaintiffs have not proven a necessary element of a trespass claim: that they
were the owners and possessors of 49 Willis Road at the time of the incident. Cornick v.
Forever Wild Dev., 240 A.D.2d 980, 981, 659 N.Y.S.2d 914, 915 (3d Dep't 1997). They
have not provided a copy of the deed, or even a sworn affidavit from one of the owners
claiming ownership and rights of possession. Instead, they submit an attorney affidavit
and a Statement of Material Facts stating that: “Plaintiffs Brian Wierzbic and Angelene
Wierzbic are the owners of the real property located at 42 Willis Road in the Town of
Aurora, County of Erie and State of New York.” (Docket Nos. 84-1 at ¶ 5; Docket No. 842 at ¶ 3 (emphasis added).) This would appear to be the incorrect address, as all other
evidence lists the site of the alleged trespass to be 49 Willis Road. Moreover, under Rule
56, a declaration used to support or oppose a motion for summary judgment must be
“made on personal knowledge, set out facts that would be admissible in evidence, and
31
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 32 of 33
show that the [ ] declarant is competent to testify on the matters stated.” Fed R. Civ. P.
56(c)(4). An attorney’s affidavit or declaration not based on personal knowledge carries
no weight. Omnipoint Commc'ns, Inc. v. Common Council of City of Peekskill, 202 F.
Supp. 2d 210, 213 (S.D.N.Y. 2002); see also Patterson v. County of Oneida, 375 F.3d
206, 219 (2d Cir. 2004) (holding that inadmissible statements in affidavits submitted in
support of summary judgment motion are incapable of raising material issues of fact).
When an affidavit does not comply with the requirements of Rule 56, the offending
portions should be disregarded by the court.
Wahad v. FBI, 179 F.R.D. 429, 435
(S.D.N.Y. 1998) (citing United States v. Alessi, 599 F.2d 513, 514-15 (2d Cir. 1979)).
Although “a trial court is permitted to determine property ownership issues as a matter of
law based upon documentary evidence,” id., no admissible evidence that Plaintiffs own
or possess the property at 49 Willis Road has been submitted here.
Accordingly,
Plaintiffs’ motion for summary judgment on the trespass claim is denied.
F.
Cross Claims
Having dismissed all claims against the East Aurora Defendants, their cross-claims
against the Erie County Defendants are dismissed as moot.
IV.
CONCLUSION
For the foregoing reasons (1) the Erie County Sheriff’s Department, the East
Aurora Police Department, Robert Braeuner, Ronald Krowka, and Erie County are
dismissed as parties; (2) the First and Fifth Amendment claims are dismissed; (3) the
federal law claims against Defendants in their official capacities are dismissed; (4) the
state-law claims against Defendants in their individual capacities are dismissed; (5)
Plaintiff’s Complaint is deemed amended to include a claim for trespass, which is
32
Case 1:13-cv-00978-WMS-LGF Document 98 Filed 01/25/18 Page 33 of 33
dismissed as to all Defendants except Deputy Hoock and Sheriff Howard; (6) all other
claims against Sheriff Howard are dismissed; (7) no punitive damages claims may be
brought against any Defendant in his official capacity; and (8) the East Aurora
Defendants’ cross-claims are dismissed as moot.
V.
ORDERS
IT HEREBY IS ORDERED, that the Motion for Summary Judgment by Defendants
Robert Braeuner, East Aurora Police Department, and Ronald Krowka (Docket No. 81) is
GRANTED;
FURTHER, that the Motion for Summary Judgment by Defendants County of Erie,
Erie County Sheriff’s Department, James Flowers, Michael Hoock, Timothy Howard,
Thomas Was, and Jason Weisser (Docket No. 83) is GRANTED in part and DENIED in
part;
FURTHER, that the Motion for Summary Judgment by Plaintiffs Angelene
Wierzbic, Bernice Wierzbic, Brian Wierzbic, and Raymond Wierzbic (Docket No. 84) is
DENIED.
FURTHER, that the Clerk of the Court is directed terminate parties the County of
Erie, Erie County Sheriff’s Department, the East Aurora Police Department, Robert
Braeuner, and Ronald Krowka.
SO ORDERED.
Dated: January 25, 2018
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?