Jones, et al v. Crisis Services of Erie County, et al
Filing
175
DECISION AND ORDER: Sherry W.'s motion for summary judgment (ECF No. 149 ) is DENIED; Harris's motion for summary judgment (ECF No. 151 ) is GRANTED and Plaintiffs' claims against him are dismissed with prejudice; and BPD and the BPD Officers' motion for summary judgment (ECF No. 154 ) is GRANTED and Plaintiffs' claims against them are dismissed without prejudice. The Clerk of the Court is directed to terminate these defendants as parties to this action. By separate order, the Court will schedule a status conference to hear from the parties about the progress of this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 12/12/2022. (MFM)Clerk to Follow up
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ROCHELLE M. JONES and
JAMES L. THOMAS,
Plaintiffs,
Case # 16-CV-234-FPG
v.
DECISION AND ORDER
SHERRY W., et al., 1
Defendants.
____________________________________
INTRODUCTION
Plaintiffs Rochelle M. Jones (“Jones”) and James L. Thomas (“Thomas”) brought an
assortment of claims against several defendants relating to the alleged removal of Jones from her
home and her confinement to a mental health facility. ECF No. 3. After multiple motions, the
only claims that remain are against Defendants Sherry W. (“Sherry”), the Buffalo Police
Department (“BPD”), Buffalo Police Department Officers John Doe 1 and John Doe 2 (the “BPD
Officers”), and Julian Harris (“Harris”). See ECF Nos. 77, 102. These claims, as enumerated in
the amended complaint, consist of 1) Jones’s claim for the violation of her Fourth Amendment
rights against Sherry, BPD, and the BPD Officers, 2) Jones’s claim for the denial of her liberty
without due process against Sherry, BPD, and the BPD Officers, 3) Jones’s claim for false arrest
and imprisonment against Sherry, BPD, and the BPD Officers, 4) Jones’s claim for defamation
against Harris, and 5) Thomas’s claim for loss of consortium, derived from Jones’s damages in her
remaining claims. ECF No. 102 at 9.
The Defendants that remain in this action are Sherry W., the Buffalo Police Department, Buffalo Police Officers
John Doe 1 and 2, and Julian Harris. All claims against the other parties were previously dismissed. See ECF Nos.
77, 102.
1
1
Presently before the Court are Sherry’s motion for summary judgment (ECF No. 149),
Harris’s motion for summary judgment (ECF No. 151), and BPD and the BPD Officers’ motion
for summary judgment (ECF No. 154). For the reasons set for below, Sherry’s motion is denied,
Harris’s motion is granted, and BPD and the BPD Officers’ motion is granted.
BACKGROUND 2
Jones and Thomas were married and living together in Buffalo in March 2015. ECF No.
157-3 ¶¶ 1-3. Harris is Jones’s son. ECF 149-2 ¶ 11. In March 2015, Harris called Crisis Services
of Erie County (“CSEC”) to request a mental health check on Jones, expressing concern over
Jones’s recent behavior. ECF 149-2 ¶ 20. In response, Sherry, a licensed mental health counselor
and CSEC employee, visited Jones’s home on March 21, 2015. Id. ¶¶ 30, 31.
Sherry was advised going into the visit that Jones had been sleeping poorly, posting on
Facebook late at night, and taking Xanax supposedly prescribed to her dog. Id. ¶ 31. During the
actual visit, Sherry purports to have observed Jones speaking quickly and in a disorganized,
grandiose manner. Id. ¶ 32. Sherry was subsequently informed that Jones had a gun in her home,
and decided to cease the mental health check until police were available to attend as well. Id. ¶
33.
The following day, on March 22, 2015, Sherry received another call from Harris
purportedly informing her that Jones had threatened to kill her daughter. Id. ¶ 35. Harris also sent
CSEC pictures of Jones’s Facebook posts and text messages, which Harris believed indicated her
mental health was deteriorating. ECF No. 151-3 ¶ 17. Sherry then returned to Jones’s home with
2
The Court takes the following facts from the various Defendants’ statements of material facts. See ECF Nos. 1492; 151-3; 154. Plaintiffs failed to offer an opposing statement responding to each numbered paragraph, as required by
the Local Rules. Local R. Civ. P. 56(a)(2). Accordingly, the Court may deem these facts admitted. Id. However, the
Court has also considered Plaintiffs’ supporting affidavits and its own review of the record in assessing the disputed
facts in the instant summary judgment motions.
2
BPD Police Officers John Doe 1 and John Doe 2. Id. ¶ 34. Jones’s conduct during this second
visit is disputed, but both parties agree that the confrontation escalated and resulted in Sherry,
purportedly pursuant to New York State Mental Health Law (“MHL”) § 9.45, directing that Jones
be transported to Erie County Medical Center (“ECMC”) for a mental health evaluation. Id. ¶¶
37, 38; ECF No. 157-1 ¶¶ 32-43.
Prior to the March 21 and 22 mental health checks, Jones’s medical records indicated she
struggled with mental health and substance abuse issues, including feelings of depression and
anxiety, frequent use of unprescribed Xanax, and a substantial amount of alcohol consumption.
ECF No. 151-3 ¶¶ 24-26. Her medical records also indicated that after Jones was admitted to
ECMC, Thomas told a nurse that she wanted to get discharged as soon as possible so she could
kill her child. Id. ¶ 43. Jones was ultimately held for approximately two weeks. Id. ¶ 42.
Jones subsequently filed suit against Defendants, among other parties. See ECF No. 3. On
August 3, 2018, this Court dismissed multiple claims on several parties’ motions to dismiss. ECF
No. 77. On September 11, 2019, this Court again dismissed multiple claims on several parties’
motions for judgment on the pleadings. ECF No. 102. Plaintiffs’ claims against the remaining
Defendants include 1) claims against Sherry for violations of her Fourth Amendment rights, denial
of liberty without due process, and false arrest, based on her removal from her home during the
March 22 mental health check; 2) claims against BPD and the BPD Officers for their role in her
removal from her home during the March 22 mental health check; 3) claims against Harris for
defamation based on the alleged statements he made to CSEC prior to both of the March mental
health checks; and 4) derivative claims against Defendants for loss of consortium on behalf of
Thomas. ECF No. 102 at 9. Discovery has closed, and Sherry (ECF No. 149), Harris (ECF No.
151), BPD, and the BPD Officers (ECF No. 154) have each moved for summary judgment.
3
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
DISCUSSION
I.
Claims Against Sherry
Sherry moves for summary judgment on the grounds that she had probable cause to admit
Jones to ECMC pursuant to MHL § 9.45. ECF No. 149-18 at 6-9. This Court finds that there is a
genuine issue of material fact as to whether Sherry had probable cause to remove Jones from her
home. Accordingly, Sherry’s motion for summary judgment is denied.
MHL § 9.45 grants designees of the director of community services the power to send an
individual to a hospital for a mental health evaluation when the individual is likely to harm
themselves or others. Montgomery v. Cuomo, 291 F. Supp. 3d 303, 312 (W.D.N.Y. 2018) (“MHL
§ 9.45 also gives . . . the power to remove someone to a hospital upon a report that the person ‘has
a mental illness for which immediate care and treatment in a hospital is appropriate and which is
likely to result in serious harm to himself or herself or others.’” (quoting MHL § 9.45)). The MHL
4
defines “likely to result in serious harm” as “(a) a substantial risk of physical harm to the person
as manifested by threats of or attempts at suicide or serious bodily harm or other conduct
demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical
harm to other persons as manifested by homicidal or other violent behavior by which others are
placed in reasonable fear of serious physical harm.” MHL § 9.01.
A designee of the community services director cannot violate an individual’s Fourth
Amendment rights if the designee has probable cause under the MHL to admit a subject to a
hospital for a mental health evaluation. See Kusak v. Klein, No. 11-CV-6557-FPG, 2015 WL
510053, at *5 (W.D.N.Y. Feb. 6, 2015) (“[A]n involuntary civil commitment—such as under the
MHL—based upon probable cause does not violate the Fourth Amendment. Having previously
determined that the Plaintiff was properly taken into custody under the MHL based upon probable
cause, any Fourth Amendment claim based upon the seizure of the Plaintiffs person fails.” (internal
citation omitted)); Kaplan v. Cty. of Orange, 528 F. Supp. 3d 141, 162 (S.D.N.Y. 2021) (“[I]n the
context of an involuntary hospitalization, a seizure does not violate the Fourth Amendment if it is
based on probable cause.”); Fisk v. Letterman, 501 F. Supp. 2d 505, 526 (S.D.N.Y. 2007) (“An
involuntary hospitalization does not violate the Fourth Amendment if it is based upon probable
cause, meaning that there are reasonable grounds for believing that the person seized is dangerous
to herself or to others.” (internal quotations omitted)).
“[A] showing of probable cause in the mental health seizure context requires only a
probability or substantial chance of dangerous behavior, not an actual showing of such behavior.”
Kusak, 2015 WL 510053, at *5 (quotations omitted). Furthermore, “to determine whether a
mental-health seizure is justified by arguable probable cause, a court must review the specific
observations and information available to the officers at the time of a seizure.” Myers v. Patterson,
5
819 F.3d 625, 633 (2d Cir. 2016). Accordingly, Sherry must establish that there is no reasonable
dispute, based on the information available to her at the time she allegedly removed Jones from
her home, that she had probable cause to act under MHL § 9.45. 3
The Court finds that Sherry has not met this standard. Sherry bases her probable cause
determination on Jones’ “paranoid, agitated, and angry” state during the March 21 and 22 mental
health checks. ECF No. 149-18 at 8-9. Sherry specifically claims that Jones grew agitated during
the visits, screamed about killing, screamed about police trying to kill her, threatened to call the
President of the United States, and called for her neighbors. Id. at 8. She also states that Sherry
was aware of Harris’s call regarding Jones’s mental health, in which he stated that Jones was a
danger to herself and others, threatened to kill her daughter, and had a gun in her house. Id.
However, Jones disputes this account of her actions during Sherry’s visits to her home.
ECF No. 158 at 7. Jones claims that she acted perfectly reasonably in response to Sherry’s visit,
and that any alarmed behavior was merely a reasonable reaction to armed police officers entering
her home. See ECF No. 157-1 ¶¶ 31, 36-39. Thomas, allegedly present during the visit, also
claims Jones acted reasonably. ECF No. 157-3 ¶¶ 4, 5, 8. There is a dispute of fact concerning
Jones’ behavior during the March 21 and 22 mental health checks.
The only undisputed evidence Sherry has proffered in support of the probable cause finding
are the pre-visit statements from Harris about Jones’s mental health. However, probable cause to
force a mental health evaluation on an individual cannot be based solely on allegations in a call
requesting a mental health check that is only corroborated by disputed testimony regarding a
Jones also brings a false arrest claim under state law against Sherry for the same conduct as her § 1983 claim. ECF
No. 3 ¶¶ 235-37. Probable cause to execute an arrest is also a complete defense to New York false arrest claims.
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest,’ whether that action is brought under state law or under §
1983.”) (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)). Accordingly, Jones’ false arrest claim
under state law is analyzed under the same probable cause standard as her other claims against Sherry.
3
6
plaintiff’s behavior. See Kerman v. City of N.Y., 261 F.3d 229, 240-41 (2d Cir. 2001). In Kerman,
the Second Circuit reversed a grant of summary judgment, finding a reasonable dispute as to
whether the defendants violated the plaintiff’s Fourth Amendment rights by forcing him to undergo
a mental health evaluation pursuant to MHL § 9.41. Id. The District Court’s decision was based
on 1) a 911 call asserting that the plaintiff was dangerous, and 2) disputed testimony about the
plaintiff’s behavior after the police arrived. Id. The Second Circuit found that:
“[It is] significant that the police failed to corroborate the gravamen of Landau’s
911 call; the officers never found a gun. Also, in contrast to the description given
by Landau, Kerman claims that he acted in a calm, if irritated, manner once he
realized what was going on. Furthermore, the officers deliberately ignored two
opportunities to confirm the seriousness of Kerman’s condition . . . . [T]he police
may have been entitled to hospitalize Kerman if his conduct or the condition of his
apartment demonstrated a dangerous mental state. The police claim that Kerman
was ranting, screaming and acting unstable. In addition, the police portray
Kerman’s apartment as an Augean stable. Kerman disputes these claims,
contending that he was calm during most of his encounter with the police and that
his apartment was, at worst, untidy. At this stage we must credit Kerman’s version
of the facts . . . . According to Kerman, the police not only failed to reasonably
investigate his mental state, they also grossly misjudged the situation as it unfolded
before them.
Id. at 240-41. Here, as discussed above, Jones’s behavior after police arrived is clearly in dispute.
Accordingly, this Court cannot find probable cause as a matter of law based solely on Harris’s call.
Therefore, the Court finds that there is a dispute of fact as to whether Sherry had probable
cause to admit Jones to ECMC under MHL § 9.45, and it denies her summary judgment motion
with respect to Jones’s claims. 4 Furthermore, because Sherry offers no grounds for summary
Sherry’s additional arguments relating to Jones’s false arrest claim are unavailing. The record clearly indicates that
Sherry acted intentionally when she decided to remove Jones from her home pursuant to MHL § 9.45. ECF No. 1492 ¶ 38 (stating Sherry determined that the criteria of MHL § 9.45 were met and directed police to remove Jones from
her home). Further, Jones’s vehement protests against her removal indicate there is at least a dispute as to whether
she was conscious of her confinement and did not contest it. Id. ¶ 36. Accordingly, the Court denies summary
judgment with respect to these additional arguments.
4
7
judgment against Thomas’ claim besides that it is derivative of Jones’s claims, Sherry’s motion is
denied with respect to Thomas’ claim as well.
II.
Claims Against Harris
Jones’s defamation claim against Harris is based on four alleged statements he gave to
representatives of CSEC. ECF No. 3 ¶ 252. These statements are 1) that Jones took Xanax
prescribed for her dog, 2) that Jones intended to kill her daughter, 3) that Jones said she was Harriet
Tubman, and 4) that Jones consumed large amounts of alcohol. ECF No. 77 at 18. Harris moves
for summary judgment against these claims on the grounds that each of the alleged defamatory
statements are substantially true. ECF No. 151-1 at 10.
To state a claim for defamation, a plaintiff must allege four elements: the defendant (1)
made a false statement about the plaintiff; (2) published it to a third party without authorization or
privilege; (3) with fault amounting to at least negligence; (4) that constitutes defamation per se or
causes special damages. Collins v. Travers Fine Jewels, Inc., No. 16-CV-03780 (SN), 2017 WL
1184305, at *2 (S.D.N.Y. Mar. 29, 2017) (citing Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323,
329 (S.D.N.Y. 2010)). Statements that are “substantially true” are not actionable under New York
law. Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 243-44 (2d Cir. 2017). A
statement is substantially true “if the statement would not have a different effect on the mind of
the reader from that which the pleaded truth would have produced.” Id.
It cannot be reasonably disputed that each of the statements Harris made to CSEC are at
least substantially true. Accordingly, Harris’s summary judgment motion is granted.
a. Jones’s Use of Xanax
Jones alleges that Harris told CSEC that “she had been self-medicating with her dog’s
Xanax.” ECF No. 3 ¶ 252. There is indisputable evidence that Jones was in fact abusing Xanax.
8
Her medical records reflect that throughout January and February of 2015, predating Harris’s
contact with CSEC, Jones sought out and used Xanax that was prescribed to other people,
repeatedly asked healthcare providers for Xanax, and threatened to start abusing alcohol if she was
not given more Xanax, all while doctors noted that she should not be given Xanax. See ECF No.
151-15 at 18 (Jones reported that “she got 2 ‘nerve pills’ from her father (she does not know what
they are) as well as 4 [X]anax tablets from her mother. She reports that when she was not able to
obtain these she began drinking bourbon to cope . . . . Rochelle asks for [X]anax several times
throughout the interview.”); id. at 19 (“Rochelle is asking specifically for [X]anax. Xanax is not
the best choice for Rochelle at this time. She has a history of alcohol abuse . . .”); id. at 20 (“Over
the past few weeks [R]ochelle has made several provocative comments attempting to obtain
[X]anax by making such statements as [‘]if you don’t give it to me I will drink[.]’”); id. at 25
(“Rochelle left a message stating that . . . she had been waking up sweating in the night and that
she felt she was not coping without Xanax . . . . I returned the call . . . . She then stated ‘when I
don’t have [X]anax I will drink.’”); id. at 29 (“Rochelle called and left a message stating that she
came back from a horrible vacation. She asked for Xanax to address anxiety regarding a job
interview.”); id. at 49 (“She feels better this morning as she got her 83 year-old mother to get a
prescription of Xanax from her PCP. She agrees that this is technically illegal but felt she had to
do it in order to function.”).
While Harris has not marshalled undisputed evidence that Jones was abusing her dog’s
Xanax specifically, this distinction is inapposite. Harris must only establish that his alleged
statements were “substantially true.” Tannerite Sports, 864 F.3d at 243. Here, there would be no
“different effect on the mind of” any CSEC employee if he or she were told that Jones was abusing
9
Xanax prescribed to others generally versus abusing Xanax prescribed to her dog specifically. Id.
Accordingly, Harris has produced evidence that her statements were substantially true.
Plaintiff Jones does not attempt to rebut or explain this evidence in her opposition to
Harris’s summary judgment motion. ECF No. 161. She denies that she ever specifically “took
Xanax prescribed to [her] dog,” but does not deny abusing Xanax prescribed to others, and she
offers no explanation of the apparent admissions in her medical records. ECF No. 161-2 ¶ 29. She
merely asserts that her conduct prior to the March 21 and 22 mental health checks is irrelevant.
Id. ¶ 40. She also fails to deny the allegations in Harris’s statement of undisputed facts relating to
her Xanax use. Compare ECF No. 151-3 ¶¶ 24-26, with ECF No. 161 (not submitting any
opposition to Defendant Harris’ statement of undisputed facts). Therefore, she has failed to
effectively dispute that Harris’s statements were substantially true.
b. Jones’s Intent to Kill Her Daughter
Jones further alleges that Harris told CSEC that she “intended to kill her daughter” before
her daughter could kill her. ECF No. 3 ¶ 252. Again, Harris has offered multiple uncontested
pieces of evidence indicating this alleged statement was true. Harris, during his deposition,
described a call with Jones during which she stated she intended to kill her daughter. ECF No.
151-5 at 129:14-130:12. Jones’s medical records also indicate Thomas told a nurse that “[h]er
son/daughter tried to shoot me once, and all my wife is thinking is that she wants to get discharged
tomorrow so she can use her guns and kill her son/daughter.” ECF No. 151-17 at 158. Jones has
also left voicemails for Harris threatening to kill him on multiple other occasions as well. See ECF
Nos. 151-10; 151-11; 151-12; 151-13.
In response to these allegations, Jones admitted in her deposition that “[i]t’s possible” she
told someone she would kill her daughter. ECF No. 151-7 at 151:9-13. She also fails to refute
10
Harris’s allegations in her opposition to his summary judgment motion. ECF No. 161. In her
opposition’s supporting affidavit, she specifically addresses Harris’s Xanax and Harriet Tubman
statements, but does not address her alleged intent to kill her daughter. ECF No. 161-2 ¶¶ 28-30.
She also, as stated above, offers no response to Harris’s statement of undisputed facts. See
generally ECF No. 161. The closest she comes to disputing this issue of fact is by denying that
she acted violently during the March 21 and 22 house visits. ECF No. 161-2 ¶¶ 39, 40. However,
this does not effectively dispute the specific evidence offered by Harris that she threatened to kill
her daughter on other occasions. Accordingly, Harris has offered undisputed evidence that Jones
stated she intended to kill her daughter, making this allegedly defamatory statement not actionable.
c. Jones’s Statement Regarding Harriet Tubman
Jones alleges that Harris told CSEC that she had “publicly stated that she was Harriet
Tubman.” ECF No. 3 ¶ 252. However, the undisputed evidence indicates Harris merely told
CSEC that Jones compared herself to Harriet Tubman, and not that she believed she was Harriet
Tubman. Harris has submitted in support of his motion an email he sent to CSEC from March 21,
2015, transmitting a Facebook post and text messages he received from Jones. ECF No. 151-22.
This clearly demonstrates that Harris was merely transmitting Jones’s actual assertions regarding
Harriet Tubman to CSEC, as she herself articulated them.
In response, Jones offers no evidence that Harris told CSEC she thought she was Harriet
Tubman. While she does discuss the different implications of comparing oneself to Harriet
Tubman versus actually claiming to be Harriet Tubman in her opposition memorandum, she fails
to cite any evidence that Harris actually stated that Jones thought she was Harriet Tubman. ECF
No. 161 at 9. Likewise, her supporting affidavit merely claims that she was comparing herself to
Harriet Tubman, and contains no allegations that Harris told CSEC otherwise. See ECF No. 161-
11
2 ¶¶ 28-30. Therefore, there is no reasonable dispute that Harris merely told CSEC that Jones was
comparing herself to Harriet Tubman, which is indisputably true. Accordingly, this alleged
defamatory statement is not actionable.
d. Jones’s Consumption of Alcohol
Lastly, Jones alleges that Harris told CSEC that she had been “drinking a lot lately.” ECF
No. 3 ¶ 252. It is undisputed that Jones was drinking a substantial amount in the time leading up
to her health check on March 22, 2015. Jones’s medical records state in multiple different entries
that she was drinking to cope with her inability to find Xanax, and sometimes drank as much as
three bottles of bourbon per week. ECF No. 151-15 at 18 (“She reports that when she was not able
to obtain [Xanax] she began drinking bourbon to cope.”); id. at 19-20 (“She has a history of alcohol
abuse and it is currently unclear the extent to which she is actually drinking. Today she reports
drinking a large bottle of bourbon 2-3 times per week.”); id. at 62 (“She came seeking Xanax
because she had run out and began drinking pretty heavily. She shares that she drank a large bottle
of 100 proof bourbon in two days. She recognized this as problematic and has not drank since
7/8.”).
Jones again fails to dispute these allegations in her opposition papers. No details regarding
her alcohol consumption are mentioned in her opposition memorandum. See ECF No. 161. In her
opposition’s supporting affidavit, she specifically addresses Harris’ Xanax and Harriet Tubman
statements, but does not deny that she had been “drinking a lot” leading up to March of 2015. See
ECF No. 161-2 ¶¶ 28-30. She even admits in her supporting affidavit that, “from time to time,”
she would drink to the point of intoxication and “on several occasions become verbally abusive.”
Id. ¶ 41. This verbal abuse appears to include her voicemails left for Harris, in which she
threatened to kill him, since Jones admitted in her deposition that these were left while she was
12
intoxicated. ECF No. 151-7 at 144:22–145:6. Also in her deposition, she asserts that she
overstated her alcohol use to her healthcare providers in an attempt to get them to prescribe her
Xanax. Id. at 142:10–143:20; 189:19–190:3. However, this does not even refute that she was in
fact “drinking a lot” leading up to her mental health evaluation. Even if it did, this explanation,
which Jones herself does not even cite to or rely on in her opposition papers, is insufficient to
create a reasonable dispute of fact, considering Jones’s admission that she drinks to the point of
becoming verbally abusive and her failure to directly dispute Harris’s drinking allegations.
Accordingly, Harris’s summary judgment motion is granted with respect to these allegedly
defamatory statements as well. Because Thomas’s claim is purely derivative of Jones’ claims,
summary judgment is granted with respect to his claim as well. See Wright v. City of Ithaca, 633
F. Appx. 63, 66 (2d Cir. 2016).
III.
Claims Against BPD and the BPD Officers
The Court grants BPD’s summary judgment motion on the grounds already stated on the
record. In its September 11, 2019 Decision and Order and Order to Show Cause, this Court ordered
Plaintiffs to show cause as to why the Court should not terminate BPD as a defendant in this case.
ECF No. 102. Plaintiffs then filed a motion seeking leave to file a second amended complaint to
include additional factual allegations relating to BPD, which the court treated as Plaintiffs’
response to the order to show cause. ECF No. 105. Magistrate Judge Hugh B. Scott issued a report
and recommendation denying this motion. ECF No. 107. This Court adopted the report and
recommendation in its entirety. ECF No. 108. Therefore, Plaintiffs have failed to show cause as
to why BPD should not be terminated as a defendant. Accordingly, for the reasons stated in this
Court’s September 11, 2019 Decision (ECF No. 102) and Magistrate Judge Scott’s report and
13
recommendation (ECF No. 107), BPD’s motion for summary judgment is granted and all claims
against BPD are dismissed.
The Court also grants the BPD Officers’ summary judgment motion because Plaintiffs have
failed to properly serve these defendants. Rule 12(b)(2) requires dismissal of claims against John
Doe defendants who remain unidentified at this stage of a case’s proceedings. See Jackson v. Cnty.
of Erie, No. 17-CV-396S, 2020 WL 5642277, at *3 (W.D.N.Y. Sept. 22, 2020) (“Courts typically
resist dismissing suits against John Doe defendants until the plaintiff has had some opportunity for
discovery to learn the identities of responsible officials. But where a plaintiff has had ample time
to discover the identities of the unnamed officials and has not yet named or served them, dismissal
without prejudice is proper.” (citing cases)); Lazo v. United States, No. 06 CIV. 5438 (JCF), 2007
WL 2948342, at *6 (S.D.N.Y. Oct. 9, 2007) (“Insofar as the Amended Complaint names as
defendants John Does 1-6, the plaintiff has never identified or served these parties, and the claims
against them must be dismissed pursuant to Rule 12(b)(2) for lack of personal jurisdiction.”).
Here, discovery has closed. Plaintiffs have accordingly been given ample opportunity to
learn the identities of these officers and serve them, but have failed to do so. Therefore, the BPD
Officers’ motion for summary judgment is granted. Furthermore, because Thomas’s claim is
purely derivative of Jones’s claims, summary judgment is granted with respect to his claim as well.
See Wright v. City of Ithaca, 633 F. Appx. 63, 66 (2d Cir. 2016) (citing Griffin v. Garratt-Callahan
Co., 74 F.3d 36, 40 (2d Cir. 1996)). 5
Because the Court finds that Plaintiffs’ claims against Harris, BPD, and the BPD Officers should be dismissed for
the aforementioned reasons, it does not reach the remaining arguments in these respective Defendants’ motions.
5
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CONCLUSION
For the foregoing reasons, Sherry’s motion for summary judgment (ECF No. 149) is
DENIED; Harris’s motion for summary judgment (ECF No. 151) is GRANTED and Plaintiffs’
claims against him are dismissed with prejudice; and BPD and the BPD Officers’ motion for
summary judgment (ECF No. 154) is GRANTED and Plaintiffs’ claims against them are dismissed
without prejudice. The Clerk of the Court is directed to terminate these defendants as parties to
this action. By separate order, the Court will schedule a status conference to hear from the parties
about the progress of this action.
IT IS SO ORDERED.
Dated: December 12, 2022
Rochester, New York
FRANK P. GERACI, JR.
UNITED STATES DISTRICT JUDGE
WESTERN DISTRICT OF NEW YORK
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