Townsend v. City of Buffalo, et al

Filing 46

DECISION AND ORDER adopting Magistrate Judge H. Kenneth Schroeder, Jr.'s Report and Recommendation 39 in part. Summary judgment is granted on the plaintiff's malicious-prosecution § 1983 cause of action - the Ninth cause of action - in its entirety. Magistrate Judge Schroeder's Report and Recommendation is otherwise adopted, and defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 is granted in defendants' favor on plaintiff's Second, and Sixth through Ninth causes of action. The Clerk shall amend the caption to reflect that Officer Mark Vara and Officer Kelly Craig are the only remaining defendants. Jury selection is scheduled for October 10, 2018, at 9:30 a.m., and the trial shall continue from day to day thereafter until complete. The Court will issue a final pretrial order. SO ORDERED. Signed by Hon. Richard J. Arcara on 6/1/2018. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHRISTINE TOWNSEND,
Plaintiff,
DECISION AND ORDER
15-CV-704-A

v.
CITY OF BUFFALO, et al.,
Defendants.

This civil-rights action alleges police misconduct under 42 U.S.C. § 1983 and
New York law. It arises from events during the early morning hours of May 9, 2014,
following plaintiff’s three 911 calls to Buffalo Police about two pit bulls jumping around
and barking on her front porch at 59 Briggs Street, Buffalo, New York. The barking pit
bulls were disturbing plaintiff, her young daughter, and plaintiff’s three dogs. When
Buffalo Police officers arrived at 59 Briggs Street, approximately two hours after the
plaintiff’s first 911 call, an argument broke out between police officers and the plaintiff,
the plaintiff was arrested, and the plaintiff claims she was injured primarily during an
allegedly excessively forceful arrest.
The case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., for the
conduct of pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). On March 5, 2018,
Magistrate Judge Schroeder filed a Report and Recommendation (Dkt. No. 39)
recommending that Defendants’ motion for summary judgment pursuant Fed. R. Civ. P.
56 (Dkt. No. 28), be granted, in part, and denied, in part. Magistrate Judge Schroeder
recommended summary judgment be granted in defendants’ favor on plaintiff’s Second,
and Sixth through Eighth causes of action, and in favor of defendant Craig on plaintiff’s

Ninth cause of action.
Defendants object to the Report and Recommendation to the extent it denies
summary judgment. Pursuant to 28 U.S.C. §636(b)(1), the Court makes a de novo
determination of those portions of the Report and Recommendation to which objections
have been made. The Court has carefully reviewed the Report and Recommendation,
the objections, and the response of plaintiff. The Court adopts the Report and
Recommendation, in part. Because criminal charges against plaintiff were dismissed at
arraignment, before any post-arraignment deprivation of liberty, summary judgment is
granted on the plaintiff’s malicious-prosecution § 1983 cause of action — the Ninth
cause of action — in its entirely. See e.g., Rohman v. New York City Transit Auth.
(NYCTA), 215 F3d 208, 215 (2d Cir. 2000). The Report and Recommendation (Dkt.
No. 36) is otherwise adopted.
For the foregoing reasons, defendants’ motion for summary judgment pursuant
to Fed. R. Civ. P. 56 is granted in defendants' favor on plaintiff's Second, and Sixth
through Ninth causes of action. The Clerk shall amend the caption to reflect that
Officer Mark Vara and Officer Kelly Craig are the only remaining defendants.
Jury selection is scheduled for October 10, 2018, at 9:30 a.m., and the trial shall
continue from day to day thereafter until complete. A final pretrial order will issue.
IT IS SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT

Dated: June 1, 2018
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