Buckley v. Niagara Frontier Transportation Authority et al
DECISION AND ORDER granting 56 Motion for Summary Judgment; granting 58 Motion for Summary Judgment; granting 67 Motion for Summary Judgment; adopting Report and Recommendations re 73 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/21/16. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsNIAGARA FRONTIER TRANSPORTATION
AUTHORITY, MANUFACTURERS AND
TRADERS TRUST COMPANY,
ALLIEDBARTON SECURITY SERVICES,
LLC, RICHARD RUSSO, individually
and in his official capacity
as an NFTA police officer,
ADAM BRODSKY, individually and
in his official capacity as
an NFTA police officer,
GEORGE GAST, individually and
in his official capacity as
NFTA police chief, ADAM REES,
JACQUELINE M. JACKSON,
and DAVID MONDRY,
Plaintiff Nathaniel Buckley (“plaintiff” or “Buckley”) filed
this action against defendants on December 18, 21013, asserting
constitutional violations and malicious prosecution claims against
defendants stemming from his arrest during a protest in Buffalo,
On July 21, 2016, United State Magistrate Judge Michael
J. Roemer issued a Report and Recommendation (“R&R”) (Docket
recommending that defendants’ summary judgement motions be granted
and the complaint be dismissed.
For the reason discussed below, the Court finds no clear error
in Judge Roemer’s Report and Recommendation, and therefore adopts
the R&R in its entirety.
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
When only general objections are made to a
magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. E.g., Brown v.
Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff’d,
175 F.3d 1007 (2d Cir. 1999).
After conducting the appropriate
review, the district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C).
Here, the Court has conducted a thorough review of the record,
the Report and Recommendation, and the relevant legal authority and
finds no clear error or manifest injustice.
Plaintiff objects to Judge Roemer’s conclusions in the R&R
officers, defendants Richard Russo (“Russo”) and Adam Brodsky
(“Brodsky”), were entitled to qualified immunity for the malicious
prosecutions and false arrest and imprisonment claims for the
reasons discussed below; (2) there was probable cause to arrest
plaintiff on all charges; (2) defendants were entitled to summary
judgment as to the malicious prosecution relating to the charges of
riot, inciting to riot, unlawful assembly and disorderly conduct;
and (3) there was no issue of fact concerning defendants’ alleged
use of excessive force during plaintiff’s arrest.
Because plaintiff’s objections merely reiterate the arguments
that were fully briefed in his original motion papers, the Court
reviews the R&R for clear error.
As to whether the officers had
probable cause to charge plaintiff with riot in the second degree,
inciting to riot, unlawful assembly, and disorderly conduct, which
dismissed by the local court judge in the interest of justice after
a mistrial, the Court finds no error in the conclusion reached by
Judge Roemer in his R&R.
contention, defendants moved for summary judgment and dismissal of
the complaint in its entirety, including the malicious prosecution
claims for all the charges filed against plaintiff.
plaintiff’s contention that Judge Roemer improperly recommended
summary judgment on these claims, sua sponte, as they relate to
disorderly conduct, riot, inciting a riot, or unlawful assembly is
Secondly, the Court agrees with Judge Roemer that
Officers Brodsky and Russo are entitled to qualified immunity on
supported by probable cause” and (2) Brodsky “did not initiate the
prosecution” against plaintiff.
R&R, p. 11.
As to the trespass charge, the Court rejects plaintiff’s
objection to the R&R and finds no error in Judge Roemer’s wellsupported determination that “[a] reasonable officer could find
that Officer Russo had ample reason to believe that [plaintiff] was
knowingly and unlawfully standing on private property.” R&R, p. 12.
Drawing all reasonable inferences in favor of the nonmoving party,
plaintiff’s contention that the protestors reasonably believed
themselves to be standing in a public space is contrary to the
record, which reveals that Officer Russo was informed that the
large crowd of protestors was not only refusing to leave the bank’s
property but had been loudly shouting profanity while doing so. In
his R&R, Judge Roemer references a portion of the video depicting
the incident that shows Russo repeatedly informing the crowd, which
includes plaintiff, that they were trespassing on private property.
Considering the facts available to the officers at the time of
plaintiff’s arrest, the Court finds no clear error or manifest
injustice in Judge Roemer’s finding that the officers had probable
cause to arrest plaintiff with trespass.
The Court finds plaintiff’s assertion that defendant officers
should have known the exact location of the property line and
should have clearly communicated this to the protestors to be
unreasonable and having no material bearing on the officers’ actual
knowledge at the time of the incident.
Moreover, plaintiff “does
not point to any record evidence from which a reasonable jury might
infer that [defendants] acted with actual malice,” and, therefore,
his malicious prosecution claim is subject to dismissal. Kalfus v.
quotation marks omitted).
attempts to attribute false or misleading statements to defendant
Adam Rees, in an effort to establish malice, the self-serving
accusations are equivocal, unsupported by the record, and/or not
indicative of actual malice.
reasonableness of the force used [during an arrest] must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Yevstifeev v. Steve, 860
F. Supp. 2d 217, 221 (W.D.N.Y. 2012) (internal quotation marks
“[T]he question is whether the officers’ actions are
objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).
reasonableness of an arresting officer’s conduct is evaluated “in
light of the information the officers possessed” at the time of the
arrest. Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007).
Officer Russo’s testimony reveals that when he arrived at the
scene, he spoke to the bank’s security officers and heard plaintiff
protestors. Russo deposition, p. 37.
Plaintiff then “repeatedly
placed himself in [Russo’s] path preventing [him] from doing [his]
job.” Russo deposition, p. 14.
When Russo grabbed plaintiff and
informed him that he was under arrest, plaintiff “started the
flailing,” eventually breaking free and fleeing down the street
away from the officer. Russo deposition, p. 14.
that he had been “grabbing at [plaintiff] and attempting to take
him into custody” when Officer Brodsky applied pepper spray to
plaintiff, who was “flailing about” or bracing his arms against the
officers to resist their control. Russo deposition, p. 6.
further testified that at the same time that plaintiff’s “physical
resistence was preventing” the officers’ efforts to place him into
custody, an “angry mob” was approaching their location and creating
a “potentially dangerous” situation. Russo deposition, p. 8-9.
light of these circumstances, which is supported by the record
evidence, and the fact that the officers had not been able to place
plaintiff into physical custody due to his resistance, plaintiff
has failed to present evidence sufficient to convince a reasonable
finder of fact that he was subjected to excessive force.
With respect to plaintiff’s remaining state law claim for
malicious prosecution, the Court finds no error in Judge Roemer’s
analysis and agrees with the findings of the R&R that this claim
should be dismissed on the merits as well.
As such, this Court
finds no clear error or manifest injustice in Judge Roemer’s
findings, as a whole, and adopts the R&R in its entirety.
For the reasons set forth in Judge Roemer’s thorough and
well-reasoned Report and Recommendation, the undersigned adopts all
of his conclusions.
The Report and Recommendation (Docket No. 73)
is hereby adopted in its entirety, and defendants’ summary judgment
motions are granted (Docket Nos. 56, 58 and 67).
The Clerk of
Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
December 21, 2016
Rochester, New York
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