Shimburski et al v. McCarthy et al

Filing 36

DECISION AND ORDER IT IS HEREBY ORDERED, that the County Defendants' Motion to Dismiss (Docket No. 25) is GRANTED IN PART and DENIED IN PART, as specified above.FURTHER, that claims against Defendants the County of Erie, S heriff Timothy Howard, and Thomas Navarro are DISMISSED.FURTHER, Plaintiffs shall serve and file a Second Amended Complaint consistent with this Decision and Order by Friday, October 23, 2020.FURTHER, that the remaining Defendants shall serve a nd file an Answer within fourteen (14) days of service of the Second Amended Complaint.FURTHER, that upon the filing of that Answer, this Court will refer this case to a Magistrate Judge for further proceedings, including conducting a status conference and scheduling of mediation.SO ORDERED.Signed by William M. Skretny, United States District Judge on 9/23/2020. (JCM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MEGAN SHIMBURSKI, MAKENNA
SHIMBURSKI, JOHN SHIMBURSKI, MARTHA
SPAULDING,
Plaintiffs,
v.

DECISION AND ORDER
17-CV-699S

DETECTIVE GREGORY McCARTHY,
DETECTIVE MATTHEW NOECKER,
DETECTIVE JACK GRAHAM, DUANE
DeGOILER, THE COUNTY OF ERIE,
SHERIFF TIMOTHY HOWARD, CAPTAIN
GREGORY SAVAGE, TOM NAVARRO,
Defendants.

I.

Introduction

Before this Court is the Motion of the remaining Defendants (collectively the
“County Defendants”) (Docket No. 25) to Dismiss the Amended Complaint (Docket
No. 20). Responses to this motion were due by December 14, 2017 (Docket No. 27),
which Plaintiffs submitted (Docket No. 28). Replies initially were due by December 21,
2017 (Docket No. 27), but the County Defendants moved for extension of time (Docket
No. 29), which was granted nunc pro tunc on February 1, 2018 (Docket No. 31), after they
filed their Reply (Docket No. 30).
One defendant, Town of Sardinia Dog Warden Duane DeGolier, did not answer or
move against the Amended Complaint by September 28, 2018. This Court then set a
deadline for DeGolier’s response to the Amended Complaint. (Docket No. 32.) That
Order also dismissed Defendants’ Motions to Dismiss the original Complaint (Docket

Nos. 14 (DeGolier), 17 (County Defendants) as moot (Docket No. 32). DeGolier then
moved to dismiss the Amended Complaint (Docket No. 33) and later entered into a
Stipulation dismissing claims against him (Docket No. 35).
Following briefing of the County Defendants’ present Motion to Dismiss, it was
deemed submitted without oral argument. For the reasons stated herein, the County
Defendants’ Motion to Dismiss the Amended Complaint (Docket No. 25) is granted in
part, denied in part.
II.

Background

A. Seizure of Lady, July 2014
This is a civil rights action for violations of the Fourth and Fourteenth Amendment
rights of Plaintiffs concerning the seizure and treatment of Plaintiffs’ family dog, Lady, and
subsequent dangerous dog proceeding.

Plaintiffs allege that Erie County Sheriff’s

detectives unlawfully trespassed on Plaintiffs’ property and, in the course of this search,
shot and injured Lady (Docket No. 20, Am. Compl. ¶¶ 1, 30). Plaintiffs claim that Lady
then was seized by Sheriff’s Department officers by the officers’ unreasonably shooting
Lady (id. ¶¶ 1, 18).
A dangerous dog hearing was held in Town of Sardinia Court and Plaintiff Megan
Shimburski (“Plaintiff” when in the singular) alleges that she was not allowed to present
evidence in that proceeding. As a result, Lady was deemed to be a dangerous dog and
suffered at the hands of Defendants. While in Defendants’ custody and care, Lady
suffered further injuries including possible cigarette burns. (Id.)
Plaintiff Megan Shimburski was visiting her parents, John Shimburski and Martha
Spaulding, on July 25, 2014, with her children, among them five-year-old Plaintiff

2

Makenna Shimburski, and her dog, Lady (id. ¶¶ 5, 6, 7, 8, 27). On that day, Sheriff’s
Deputies defendants Graham, Noecker, and McCarthy appeared at John Shimburski and
Martha Spaulding’s residence on Pratham Road in East Concord (id. ¶¶ 6, 26-27).
McCarthy and Noecker went to the back yard (while Graham went to the front) and were
greeted by Lady, a two-year-old pit bull terrier (id. ¶¶ 29, 8, 30). Lady “sauntered around
the corner” and was shot in the head by McCarthy (id. ¶ 30). Makenna was with Lady at
the time and the bullet grazed Lady and “nearly causing the fatal demise” of Makenna (id.
¶¶ 30, 1), although Plaintiffs make no claim for any injuries to her save emotional wounds
from the incident (see id. ¶ 55). McCarthy allegedly shot Lady because he thought she
was charging him (id. ¶ 32). Plaintiffs contend that Lady was yards away from Detective
McCarthy when he shot her and there was no evidence of the Deputies being bitten (id.
¶ 42).
Meanwhile, John Shimburski and Martha Spaulding have their own dog, a
Shepherd mix named Ace (id. ¶ 8), and Ace ran out to Graham when he approached the
front and Ace then stopped (id. ¶ 29); that dog was not shot.
Plaintiffs describe Lady as a good-natured dog, gentle and loving, who was
allowed to wander off leash on her large country back yard (id. ¶ 33).
The Deputies then entered the residence without permission and seized Plaintiff
Megan Shimburski (id. ¶ 34). Megan Shimburski asked if they had a warrant and they
answered that they did not. She then asked to be allowed to seek veterinary care for
Lady but was denied; the officers told her that they had to wait for an animal control officer
before Lady could be moved. Furthermore, the officers’ vehicles blocked her car. (Id.)

3

As ordered, Megan Shimburski called her parents (id. ¶ 34); when they arrived the
Deputies searched their home, ostensibly looking for her former boyfriend (id. ¶¶ 35, 28,
63). Plaintiffs deny that the Deputies were lawfully present there or had consent, a
warrant, or any exigent circumstance to justify their entry and continued presence in
Plaintiffs’ home (id. ¶¶ 36, 61, 62). Defendants refused requests by Megan Shimburski
and her parents to leave or to seek veterinary care for Lady (id. ¶ 38).
One hour later, Megan and John Shimburski were allowed to leave with Lady (after
a further delay for photographs of the wounded dog) and Lady was provided life-saving
surgery costing $1,400 in veterinary bills (id. ¶ 41).
Megan Shimburski later posted statements about this incident on Facebook
starting on or about August 3, 2014, with a Facebook group formed in Lady’s honor and
contact information for the Sheriff’s office published (id. ¶ 43). On August 5, 2014, eleven
days after the shooting, the Deputies filed a petition in Sardinia Town Court alleging that
Lady was a “dangerous dog” under the New York Agriculture and Markets Law § 123 and
sought her seizure (id. ¶ 44). Later that day, Lady was seized by animal control officer
DeGolier (id. ¶ 45). Plaintiff visited Lady in the kennel on August 8 and saw additional
facial sores on Lady that resembled cigarette burns which were not on her face when
Lady was seized (id. ¶ 46). Plaintiffs incurred additional veterinary expenses for treatment
of these sores (id.).
Plaintiffs next argue that the dangerous dog hearing was conducted in an improper
manner, with Plaintiffs and their witnesses were excluded from the hearing room while
the prosecution and Government witnesses were allowed in, as well as fifteen Sheriff’s
Deputies (id. ¶ 48). Megan Shimburski alleges fifteen Sheriff’s Deputies were in the

4

courtroom forming a confrontational atmosphere (id.).

Assistant County Attorney

defendant Tom Navarro participated in the hearing, Megan claiming that Navarro
allegedly encouraged the claimed unconstitutional process during that hearing (id.). After
denying Megan Shimburski’s motion to dismiss, Town Justice Heintz denied her the
opportunity to produce witnesses and to be heard, finding that Lady was a dangerous dog
(id.). Plaintiffs do not allege what happened to Lady after that decision, cf. N.Y. Agric. &
Mkts. Law § 123(2) (ordering spaying of a dog , microchipping, secure confinement,
restraint, or muzzling), (3) (upon finding a dog is dangerous, the justice may order humane
euthanasia or permanent confinement upon specific findings and, if ordering euthanasia
granting the owner time to file a notice of appeal).
B. Pleadings
Plaintiffs filed their original Complaint on July 25, 2017 (Docket No. 1). Defendant
Duane DeGolier moved to dismiss for failure to state a claim (Docket No. 14) and the
County Defendants also moved to dismiss (Docket No. 17). After responding to these
motions (Docket Nos. 18, 19), Plaintiffs filed their Amended Complaint (Docket No. 20).
The County Defendants then moved to dismiss the Amended Complaint in the pending
motion (Docket No. 25). As previously stated, this Court deemed moot the motions to
dismiss the initial Complaint (Docket No. 32).
In the Amended Complaint (Docket No. 20), Plaintiffs now allege six causes of
action (including the final, unenumerated claim for punitive damages). In the First Cause
of Action, Plaintiffs allege against McCarthy, Noecker, and Graham in their individual

5

capacities1 violated Plaintiffs’ Fourth and Fourteenth Amendment rights in unlawfully
damaging and depriving them of their property, Lady, a companion animal (id. ¶¶ 51-59).
The Second Cause of Action alleges that Defendants McCarthy, Noecker, and
Graham (in their individual capacities) violated Plaintiffs’ Fourth and Fourteenth
Amendment rights by their unlawful entry without a warrant on July 25, 2014 (id. ¶¶ 6172).
The Third Cause of Action alleges these Defendants (again in their individual
capacities) violated Plaintiffs’ Fourth and Fourteenth Amendment rights against
unreasonable seizure, false arrest, and false imprisonment of Plaintiffs for about an hour
when they were detained during the search on July 25, 2014 (id. ¶¶ 74-88, 41).
The Fourth Cause of Action alleges establishment of a municipal policy by
Defendants Erie County Sheriff Timothy Howard and Erie County (and the individual
Deputies, in their official and individual capacities) to deprive Plaintiffs of their property in
violation of the Fourth and Fourteenth Amendments by shooting Plaintiffs’ dog (id. ¶¶ 9095). Plaintiffs cite to two other examples of Sheriff’s Department shooting dogs during
searches to allege a pattern and practice that was applied to Lady (id. ¶ 91), with one
example occurring in 2012 and the other in 2016 (after the shooting alleged here) (id.).
The Fifth Cause of Action is alleged by Plaintiff Megan Shimburski only; she
contends defendants Captain Gregory Savage and Assistant County Attorney Thomas
Navarro violated her Fourth, Sixth, and Fourteenth Amendment rights during the
dangerous dog hearing (id. ¶¶ 97-104). Plaintiff contends the process afforded during
the August 12, 2014, dangerous dog hearing was inadequate (id. ¶ 99). Plaintiff points

1This

is the only Cause of Action alleged against DeGolier for his role is seizing Lady, id. ¶ 58, but
claims against DeGolier were dismissed by stipulation, Docket No. 35.

6

out that Deputies lined the walls of the courtroom, intimidating her, with Captain Savage
and Assistant County Attorney Navarro as part of the entourage; that Captain Savage
supervised Detectives Graham, McCarthy, and Noecker (id. ¶¶ 100-01). She alleges that
Navarro, as a County Attorney, “orchestrated and directed such violations of the due
process taking place” against her (id. ¶ 102). Town Justice Heintz deprived Plaintiff of an
opportunity to testify at the hearing, all while Navarro and Savage stood silently “tacitly
enabling and causing Plaintiff’s due process rights to be violated” (id. ¶ 103).
The unnumbered last Cause of Action seeks punitive damages from Defendants
Erie County, Navarro, Savage, McCarthy, Noecker, and Graham (id. ¶¶ 106-07; cf. id.
¶ 106 (alleges Sheriff Howard also)) for their respective deliberate indifference to
Plaintiffs’ constitutional rights (id. ¶ 106).
Plaintiffs here demand compensatory, exemplary, and punitive damages, costs,
and recovery of their attorneys’ fees under 42 U.S.C. § 1988 (id. at 31).
C. Motion to Dismiss Amended Complaint (Docket No. 25)
The County Defendants move to dismiss discrete causes of action and particular
Defendants (Docket No. 25, Defs. Memo. at 2). They seek dismissal of the First Cause
of Action for failing to state a valid cause of action because there is no due process claim
alleged for the injuries to Lady (id. at 2, 6-8). They next argue that the Fourth Cause of
Action against Deputies McCarthy, Noecker, and Graham against them in their official
capacities should be dismissed because Plaintiffs fail to allege a specific policy or custom
that deprived them of a constitutional right (id. at 2, 8-12). Defendants argue that this
Cause of Action also fails against Erie County and Sheriff Howard in his official capacity
(id. at 2, 12-15). The County Defendants contend that the claims against Captain Savage

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and Assistant County Attorney Navarro (the Fifth and punitive Sixth Causes of Action)
should be dismissed because they had no role in the conduct of the dangerous dog
proceeding Plaintiff complains is procedurally defective (id. at 2, 15-19). Finally, they fault
the Sixth punitive damages claim because Plaintiffs failed to allege factual allegations of
malice or intentional conduct to warrant punitive damages (id. at 2-3, 19-20).
D. Plaintiffs’ Responses (Docket No. 28) and Defense Reply (Docket No. 30)
Plaintiffs respond that these grounds for dismissal either should be rejected or
granted on a limited basis (Docket No. 28, Pls. Memo. at 2).

They contend that

Defendants misconstrue the First Cause of Action; it was not a due process claim alleged,
but an unreasonable seizure claim under the Fourth Amendment (as incorporated by the
Fourteenth Amendment to apply to municipal defendants) (id. at 2-5, see Mapp v. Ohio,
367 U.S. 643 (1961); Aguilar v. Texas, 378 U.S. 108 (1964)).
They next argue that there is little difference between individual and official
capacity (id. at 5-6). They claimed they alleged Sheriff Howard acted in his official
capacity due to deliberate indifference perpetrated by policymakers towards officers’
interactions with animals and the void of proper leadership and training (id. at 6). They
contend that they alleged a policy or custom, here the failure to train properly Deputies in
their engagement with companion animals (id. at 6-9). Plaintiffs point to the Deputy
defendants being subordinates to the Sheriff and therefore under his training (or lack
thereof) (id. at 9-10).
Megan Shimburski then argues that the “excessive number of uniformed personnel
in a courtroom can create” a hostile environment (id. at 10-13). She argues that Navarro
and Savage lacked the authority to order two of her witnesses from the hearing (id. at 14),

8

although the Amended Complaint (Docket No. 20) did not allege that Navarro had any
role in excluding the witnesses and that Savage threatened and kicked out the witnesses
(Docket No. 20, Am. Compl. ¶ 101).
Megan Shimburski next argues that she amended the Complaint to remove
paragraphs 107-10, rendering Defendants’ present objections to those sections moot
(Docket No. 28, Pls. Memo. at 15-16).
Plaintiffs then conclude that the punitive damages claims should remain against
Defendants in their individual capacities (id. at 16-18), see Smith v. Wade, 461 U.S. 30,
35-36 (1983), acknowledging that municipalities cannot be held liable for punitive
damages (id. at 16-17). As for Navarro and Savage, Plaintiffs contend that their actions
alleged in the Fifth Cause of Action shows their callous disregard for Megan Shimburski’s
rights (id. at 17-18). As for the detective Defendants, Plaintiffs conclude that the County
Defendants failed to counter their contention that these Defendants’ actions were reckless
or in callous disregard of Plaintiffs’ rights (id. at 18).
While dismissing their substantive due process claim from shooting Lady, the
County Defendants reply that the Fourth Amendment allegation still fails for the First
Cause of Action, stating that Plaintiffs have not cited decisional law supporting the
proposition that injury to a dog constitutes a “seizure” under the Fourth Amendment
(Docket No. 30, Defs. Reply Memo. at 2-3). They deny that they moved to dismiss the
Fourth Amendment claims in the Second and Third Causes of Action (id. at 3). They
contend that the First Cause of Action seeks relief for the dog and conclude that the dog’s
injuries are not actionable under § 1983 (id.). The Fourth Cause of Action should be
dismissed because Plaintiffs failed to allege a specific policy or custom deprived them of

9

their constitutional right, instead asserting the conclusory allegations of their § 1983
claims (id. at 3-4, 4-6).
As for the Fifth Cause of Action, the County Defendants reply that Megan
Shimburski has not alleged a connection between Navarro and Savage and “other
unspecified uniformed officers in the courtroom” (id. at 6-7). They also deny that the
presence of these officers was not inherently prejudicial (id. at 7, citing Holbrook v. Flynn,
475 U.S. 560, 567-68 (1986)). They offer that these officers may not have been Sheriff’s
Deputies and may have been present for other cases to be heard that night (id. at 8).
III.

Discussion

A. Applicable Standards
1. Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court cannot
dismiss a Complaint unless it appears “beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S.
41, 45-46 (1957). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S.
554 (2007), a Complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state
a claim upon which relief can be granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face,” id. at 570 (rejecting longstanding precedent of
Conley, supra, 355 U.S. at 45-46). To survive a motion to dismiss, the factual allegations
in the Complaint “must be enough to raise a right to relief above the speculative level,”
Twombly, supra, 550 U.S. at 555. As recently reaffirmed by the Court in Ashcroft v. Iqbal,
556 U.S. 662 (2009), rev’g Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007),
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
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face.’ [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556 . . . . The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets
omitted).”
Iqbal, supra, 556 U.S. at 678 (citations omitted).
A Rule 12(b)(6) motion is addressed to the face of the pleading. The pleading is
deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any
document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir.
1985). In considering such a motion, the Court must accept as true all of the well pleaded
facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,
754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general
legal conclusions necessary to prevail on the merits and are unsupported by factual
averments will not be accepted as true. New York State Teamsters Council Health and
Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).
2. Civil Rights Violations, 42 U.S.C. § 1983
To prevail on their § 1983 claim, “two elements must be met: (1) defendants’
conduct must be committed by a person acting under color of state law; and (2) this
conduct must deprive a person of ‘rights, privileges, or immunities secured by the
Constitution or laws of the United States,” Skinner v. Chapman, 326 F. Supp. 2d 431, 433
(W.D.N.Y. 2004) (Larimer, J.), quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981). The
state action element is not disputed here, with all municipal employees or a municipal
defendant.

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The Fourth Amendment to the United States Constitution provides that
“the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrant shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized,”
U.S. Const. amend. IV. “Effects” include personal property, United States v. Place,
462 U.S. 696, 700 (1983); see Skinner, supra, 326 F. Supp. 2d at 433 (assuming under
New York Agriculture and Markets Law that dogs are personal property, citing N.Y. Agric.
& Mkts. Law § 109).
The Fourth Amendment also prohibits “the ‘[e]xcessive or unnecessary destruction
of property in the course of a search,’” Frederique v. County of Nassau, 168 F. Supp. 3d
455, 475 (E.D.N.Y. 2016) (quoting Smith v. City of N.Y., No. 04 Civ. 3286, 2010 WL
3397683, at *13 (S.D.N.Y. Aug. 27, 2010) (when defendants mortally wounded plaintiff’s
dog)).
In the context of the wounding of a dog during the conduct of a search, courts have
recognized the killing of a dog during a search constitutes destruction of property and a
seizure under the Fourth Amendment, Dziekan v. Gaynor, 376 F. Supp. 2d 267, 270 (D.
Conn. 2005) (citing cases). In Dziekan, accepting the government’s “strong interest in
allowing law enforcement to protect themselves and the citizenry from animal attacks,”
the District of Connecticut acknowledged (on defendant’s summary judgment motion) that
courts have held the killing in that circumstance is not an unreasonable seizure, id. at 271
(citing cases), with the focus on the imminent threat posed by the dogs, id. When the
killing of the dog, however, does not pose an imminent danger, that killing constitutes an
unreasonable seizure, id. (citing other cases). In Dziekan, the court concluded that a 55-

12

to 60-pound dog shot fifteen feet from one defendant posed an imminent danger, id. at
271.
Plaintiff has the burden to prove that a seizure was unreasonable, Carroll v. County
of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (per curiam). Reasonableness is objective
inquiry based on the totality of the circumstances and not the officer’s subjective intent,
Graham v. Connor, 490 U.S. 386, 397 (1989); Cabisca v. City of Rochester,
No. 14CV6485, 2019 WL 5691897, at *10 (W.D.N.Y. Nov. 4, 2019) (Feldman, Mag. J.).
The Graham Court admonished that “[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation,” Graham, supra, 490 U.S. at
396-97. Applying this calculus “is often difficult,” Cabisca, supra, 2019 WL 5691897, at
*11.
The Fourth Cause of Action alleges the existence of a municipal policy to violate
Plaintiffs’ rights. Plaintiffs need to allege an official policy or custom that caused them to
be subject to denial of constitutional right, Zahra v. Town of Southold, 48 F.3d 674, 685
(2d Cir. 1995) (Docket No. 25, Defs. Memo. at 9). Municipalities, such as Erie County,
are not vicariously liable for the actions of its employees and must have committed the
constitutional violation itself, Monell v. Department of Soc. Servs., 436 U.S. 658, 691
(1978) (id. at 9-10). One court has held that
“to sufficiently plead a Monell claim, the complaint ‘must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing
party to defend itself effectively,’ and, ‘the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such that it is not
unfair to require the opposing party to be subjected to the expense of
discovery and continued litigation,’”
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Bagley v. City of Sunnyvale, No. 16-cv-02250-JSC, 2017 WL 5068567, at *4 (N.D. Cal.
Nov. 3, 2017) (quoting AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th
Cir. 2012) (internal citation omitted)).
B. First Cause of Action
Defendants move to dismiss Plaintiffs’ First, Fourth, and Fifth Causes of Action
and their claims for punitive damages (Docket No. 25). They argue that the Amended
Complaint should be dismissed in its entirety against Erie County and Sheriff Howard (id.,
Defs. Memo. at 3), although named only in the Fourth Cause of Action; against McCarthy,
Noecker, and Graham in their official capacities (id.) (again named only in that capacity
in the Fourth Cause of Action); and against Navarro and Savage (id.) (only named in the
Fifth and punitive damages causes of action hereinafter called the “Sixth Cause of
Action,” cf. Docket No. 25). Defendants do not address the Second and Third Causes of
Action (see Docket No. 30, Defs. Reply Memo. at 3). Thus, Defendants’ motion becomes
a motion for partial dismissal of the case; some claims and parties will remain after if this
motion were granted in full.
Plaintiffs have alleged that Lady was Megan Shimburski’s personal property
(Docket No. 20, Am. Compl. ¶¶ 8, 30) subject to protection under the Fourth Amendment,
see Matteson v. Hall, No. 18CV6772, 2019 WL 2192502, at *6 (W.D.N.Y. May 21, 2019)
(Telesca, J.) (denying motion to dismiss).
The parties agree that Plaintiffs have not alleged a due process (Fifth or Fourteenth
Amendment) violation. Their claim in this action (especially in the First Cause of Action)
is under the Fourth Amendment, not the Fourteenth Amendment substantive due process
provision.

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To determine whether a seizure under the Fourth Amendment is unreasonable,
this Court would need to balance (and Plaintiffs need to allege in the first instance) the
nature and quality of the intrusion of Plaintiffs’ Fourth Amendment interest (here Lady’s
well-being) against the governmental interest justifying the intrusion (searching for Megan
Shimburski’s former boyfriend and the danger posed by Lady) and determine whether the
totality of the circumstances justified the particular sort of seizure, Carroll, supra, 712 F.3d
at 651 (quoting Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)); Cabisca, supra, 2019 WL
5691897, at *10 (decision following trial).
This Motion poses the issue whether Plaintiffs alleged (in their First Cause of
Action) that Defendant McCarthy’s wounding of a family dog was an unreasonable
seizure in violation of the Fourth Amendment. The parties fail to cite cases on this precise
point. This Court has found cases when the dog is killed during the course of the search
and the killing constitutes a Fourth Amendment seizure, Carroll, supra, 712 F.3d at 651;
Van Patten v. City of Binghamton, 137 F. Supp. 2d 98, 107 (N.D.N.Y. 2001); Frederique,
supra, 168 F. Supp. 3d at 475.
Whether the seizure of property (the killing of the dog) is unreasonable depends
upon the balance of the nature and quality of the intrusion on Plaintiffs’ Fourth
Amendment interests and the Government’s interest alleged to justify the intrusion,
Garner, supra, 471 U.S. at 8-9; Carroll, supra, 712 F.3d at 651; Dziekan, supra, 376 F.
Supp. 2d at 270, where that interest is protection of the officers and the public against a
dangerous animal, Dziekan, supra, 376 F. Supp. 2d at 270. Where harm is imminent,
courts have held that the seizure was reasonable, e.g., id. (citing cases). When the dog
is killed and “not merely injured or detained—the intrusion on the owner weighs heavily

15

in favor of finding the seizure unreasonable and constitutional,” Kendall v. Olsen, 237 F.
Supp. 3d 1156, 1167 (D. Utah 2017); Matteson, supra, 2019 WL 2192502, at *7.
Courts also noted specific considerations to keep in mind when a dog is killed in
this context. There is the “severe intrusion given the emotional attachment between a
dog and an owner,” Carroll, supra, 712 F.3d at 651; see Kendall, supra, 237 F. Supp. 3d
at 1167 (most dog owners think of dogs solely in terms of emotional relationship rather
than property relationship).

On the other side, the governmental interest may be

significant since dogs may represent a serious risk to safety of officers and the general
public, and it may be “reasonable for an officer to shoot a dog that he believes poses a
threat to his safety or the safety of the community,” Carroll, supra, 712 F.3d at 651. The
law does not require the officer to wait for the dog to approach biting distance or is leaping
before taking protective action, Dziekan, supra, 376 F. Supp. 2d at 272; Cabisca, supra,
2019 WL 5691897, at *10. The breed of dog does not justify a fatal shooting, Azurdia v.
City of N.Y., No. 18CV4189-ARR-PK, 2019 WL 1406647, at *8 (E.D.N.Y. Mar. 28, 2019)
(citing Branson v. Price, No. 13-cv-03090-REB-NYW, 2015 WL 5562174, at *6 (D. Colo.
Sept. 21, 2015)); Matteson, supra, 2019 WL 2192502, at *8. The breed may be a factor
considered when assessing the reasonableness of a seizure, Matteson, supra, at *8. In
Matteson, officers mortally wounded an American Staffordshire Terrier/Lab mix dog, id.
at *1 (also known as a pit bull, id. at *8 n.2). But the breed of the dog by itself does not
make a “shoot first and ask questions later” technique reasonable, id. at *8.
The mere presence of a dog (absent actions or menace by the dog or some sign
of aggression) is insufficient to be reasonable seizure, Strong v. Perrone, No. 17CV6183,
2020 WL 1445877, at *4 (W.D.N.Y. Mar. 25, 2020) (Geraci, C.J.). The dog’s general

16

temperament also is relevant, id. at *5; Matteson, supra, 2019 WL 2192502, at *8. On
the other hand, where the dog manifests signs of aggression, “courts regularly find that it
is reasonable for officers to defend themselves,” Strong, supra, 2020 WL 1445877, at *4
(citing Carroll, supra, 712 F.3d at 652; Kendall, supra, 237 F. Supp. 3d at 1169). For
example, in Strong, Chief Judge Geraci found in denying defendants motion for summary
judgment that there was enough direct and circumstantial evidence that a reasonable jury
could find that the dog was not displaying signs of aggression, 2020 WL 1445877, at *4.
The present case, however, involves the wounding of Lady, regardless of the
alleged mortal intention of Defendant McCarthy. Save this wounding, Lady was not
physically taken on July 25, 2014. Plaintiffs were allowed to take Lady to the veterinarian
for treatment later that day. Days later, Lady was seized by Town of Sardinia animal
control.
Given this scenario, have Plaintiffs alleged that Lady was “seized” for Fourth
Amendment purposes? At least one court has found that a plaintiff has stated a Fourth
Amendment seizure claim for the wounding of their dog during an arrest, Brandon v.
Village of Maywood, 157 F. Supp. 2d 917, 930-31 (N.D. Ill. 2001) (plaintiff’s dog shot 19
times but not killed, court considered Fourth Amendment seizure in split second decision
and officers having a deemed strong interest to avoid injury from the dog); Bateman v.
Driggett, No. 11-13142, 2012 WL 2564839 (E.D. Mich. July 2, 2012). The district court in
Bateman held that the shooting and severe injury of a pet pit bull “was [a] meaningful
interference with [plaintiff’s] possessory interests in his pet dog,” 2012 WL 2564839, at
*7. Whether the Fourth Amendment is violated in wounding Lady then turns on whether
the shooting was reasonable under the circumstances, id.

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Lady was described in the Amended Complaint as 65-pound two-year-old pit bull
terrier (Docket No. 20, Am. Compl. ¶¶ 29, 8, 30). Lady allegedly was not charging
Defendants, although Defendant McCarthy believed otherwise (id. ¶ 32), that she was a
dog allowed to range her yard and was sauntering to McCarthy and Noecker as they
entered the backyard (id. ¶¶ 30, 33). They allege that McCarthy was yards away from
Lady when he shot her. They also contend that Defendants lack evidence of being bitten
by Lady. (Id. ¶ 42.)
Unlike most of the cases cited, this case has a motion to dismiss pending rather
than a motion for summary judgment or following a trial. Plaintiffs’ allegations have to be
accepted as true for the motion to dismiss. At this stage, Plaintiffs merely need to allege
the seizure (here the wounding) and that the seizure was not reasonable. If so alleged,
the validity of the allegations would be tested at later stages. Given that this is at the
pleading stage and absent any discovery, Plaintiffs have alleged an unreasonable seizure
by wounding a dog with no evidence of danger from that animal. Therefore, the County
Defendants’ Motion to Dismiss (Docket No. 25) the First Cause of Action is denied.
C. Fourth Cause of Action
Defendants argue that Plaintiffs’ deprivation of property claim for the shooting of
Lady fails to state a cause of action by failing to state a policy or custom (Docket No. 25,
Defs. Memo. at 8-12). Plaintiffs cite to two other instances of what they term “puppycide”
(Docket No. 20, Am. Compl. ¶ 91), the Sheriff’s department shooting of dogs during
execution of searches. One case, a search in Buffalo in 2016 (id.), occurred after the
July 2014 incident.

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Defendants contend that Erie County and Sheriff Howard cannot be held solely
liable through vicarious liability (Docket No. 25, Defs. Memo. at 10 n.1, citing Monell,
supra, 436 U.S. at 694; Villar v. Howard, 126 A.D.3d 1297, 1299, 6 N.Y.S.3d 811, 813
(4th Dep’t 2015)). They also argue that Plaintiffs made no specific policy or custom
allegation required to pass muster as pleading under Twombly (Docket No. 25, Defs.
Memo. at 9, 10).
Plaintiffs argue that the policy was the reckless use of force against dogs during
Sheriff’s Department searches allowed to occur because of the failure of policy makers
to train and supervise their subordinates (Docket No. 28, Pls. Memo. at 7; see Docket
No. 20, Am. Compl. ¶ 91), see City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
Failure to train is an actionable policy only where that failure reflects a deliberate
or conscious choice by the municipality, id. at 389 (see Docket No. 30, Defs. Reply Memo.
at 5). “Monell’s rule that a city is not liable under § 1983 unless a municipal policy causes
a constitutional deprivation will not be satisfied by merely alleging that the existing training
program for a class of employees, such as police officers, represents a policy for which
the city is responsible,” id.

Plaintiffs need to allege that the training program is

inadequate, and that inadequacy reflects municipal policy, id. at 390. “A municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure
to train,” Connick v. Thompson, 563 U.S. 51, 61 (2011); Griffin v. Delvecchio,
No. 16CV6029, 2016 WL 3232260, at *4 (W.D.N.Y. June 13, 2016) (Siragusa, J.). As
Justice Clarence Thomas noted in Connick, deliberate indifference in training “‘is a
stringent standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action,’” 563 U.S. at 61 (quoting Board of Comm’rs of Bryan

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County v. Brown, 520 U.S. 397, 410 (1997)). A lesser standard for failure to train would
devolve into respondeat superior liability on municipalities, id. at 62 (quoting City of
Canton, supra, 489 U.S. at 392). Proof of a policy of inadequate (or here apparently
nonexistent) training requires allegation that “the inadequacies resulted from conscious
choice—that is, proof that the policymakers deliberately chose a training program which
would prove inadequate,” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985);
Griffin, supra, 2016 WL 3232260, at *4.
Plaintiffs here allege that the County and Sheriff Howard allowed Lady to be shot
by McCarthy as part of a customary practice of the County (Docket No. 20, Am. Compl.
¶ 90). In an over four-page long 2 paragraph in the Amended Complaint, Plaintiffs assert
their failure to train allegation: describing the legal standard; setting forth McCarthy’s
shooting of Lady; providing two other examples (among unknown number of others) of
Sheriff’s Deputy shootings of dogs incident to searches; subsequent attempts to have
animal control officers dispose of the injured or dead animal; “superficial ‘reviews’” of the
discharge of the firearms; McCarthy allegedly stating that there was no training in relation
to animals; with these repeated violations amounting to deliberate indifference by Erie
County; and that Sheriff Howard would know that his officers would confront dogs and yet
failed to ensure their proper training for dealing with them (id. ¶ 91).
In this case, Lady was not disposed of by animal control on July 25, 2014, although
Sheriff’s Deputies later filed a dangerous dog charge to have Lady confiscated. As
Defendants contend (Docket No. 25, Defs. Memo. at 9), Plaintiffs make only conclusory
allegations and far fewer factual allegations. The only factual allegations are McCarthy

2Cf.

Fed. R. Civ. P. 10(b) (claims stated in numbered paragraphs “each limited as far as practicable
to a single set of circumstances”).

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denying that he received any training regarding handling animals, his shooting of Lady,
and the two other officer shooting of dogs during searches. This alone is not enough to
meet Plaintiffs’ burden under Twombly to assert sufficient factual matter to state a
plausible claim of municipal liability. Plaintiffs do not allege that this failure to train officers
in how to deal with dogs was a deliberate or conscious choice. Training (or the lack
thereof) at the time of Lady’s shooting would have been required from the one stated
instance of Sheriff’s Deputy shooting of a dog and Plaintiffs’ generic allegation of more
incidents of Sheriff’s Department shootings of dogs. To allege the failure to train was a
deliberate or conscious choice of Defendants, Plaintiffs needed to plead more than the
incident in this case and one other example to justify the need for such training, see
Griffin, supra, 2016 WL 3232260, at *3-4 (a single incident in insufficient to meet
requirement for a Monell claim for showing a custom, practice or policy arising from a
failure to train).
Therefore, Defendants’ Motion to Dismiss (Docket No. 25) to dismiss the Fourth
Cause of Action is granted.
D. Fifth Cause of Action
Defendants next contend that Megan Shimburski’s Fifth Cause of Action against
Navarro and Captain Savage fails because she fails to allege that Navarro and Captain
Savage had any role in the dangerous dog hearing of August 12, 2014, and had no
obligation to instruct the town court how to proceed during that hearing (Docket No. 25,
Defs. Memo. at 18).
Defendants attach a copy of the Judiciary Law Section 44 proceeding against
Town Justice Heintz following that hearing (Docket No. 25, Defs. Atty. Decl. ¶ 6, Ex. C, In

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the Matter of the Proceeding Pursuant to Section 44, Gene R. Heintz, 2015 WL 9590797
(N.Y. Comm’n on Judicial Conduct Dec. 17, 2015)). The determination of the Commission
on Judicial Conduct in that proceeding is illuminating. Defendants McCarthy and Graham
filed a Dangerous Dog Complaint on August 5, 2014, alleging that on July 25, 2014, a pit
bull owned by Plaintiff “attempted to attack Detective McCarthy as he, Detective Graham
and Detective Matthew Noecker approached the home of Ms. Shimburski’s parents,
looking for Ms.

Shimburski’s boyfriend,” id., 2015 WL 9590797, at *1.

Town

Justice Heintz, a layperson judge on the town bench since January 2014, issued the
seizure order and presided over the dangerous dog proceeding in August, id. The
dangerous dog hearing was Justice Heintz’ first hearing, id. at *3. The Commission found
that Justice Heintz erred in sending hearing notices only to witnesses that the judge
thought would favor the town in seizure of the dog; summarily ending the hearing at the
conclusion of the prosecution’s case; not allowing Plaintiff or her witnesses to testify; and
issuing a decision for the town “without including statutorily-mandated conditions
consistent with the ruling,” id. at *1, 4. The Commission admonished the judge, id. at *5.
Defendants argue that Plaintiff has not asserted a due process violation in
Captain Savage or Navarro being present at the dangerous dog hearing (Docket No. 25,
Defs. Memo. at 17). They point out that some of Plaintiff’s due process objections
(sequestration of Plaintiff’s witnesses) did not implicate due process interest (id.). Megan
Shimburski responds that the presence of Navarro, Captain Savage, and the “excessive
amount of uniformed personnel” at the hearing can influence the fact finder and deprive
her of due process (Docket No. 28, Pls. Memo. at 10). Defendants replied denying that

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the presence of law enforcement officers was not inherently prejudicial (Docket No. 30,
Defs. Reply Memo. at 7-8). This Court need not resolve these issues.
The named Defendants Navarro and Captain Savage generally had no role in how
Justice Heintz conducted the hearing. As the New York Commission on Judicial Conduct
noted in its admonition, Justice Heintz was a lay jurist conducting his first hearing ever
and made various procedural mistakes. Most of Megan Shimburski’s complaints on the
conduct of that proceeding arise from these mistakes. Had Navarro or Captain Savage
attempted to intervene as Plaintiff believed they should have that intervention probably
would have been in vain.

The Commission quoted the colloquy between Plaintiff’s

counsel and Justice Heintz as the jurist went from denying her motion to dismiss to directly
finding (in error) that Lady was a dangerous dog solely upon the prosecution’s evidence,
id. at *2-3, 1, 4. The due process violations alleged by Megan Shimburski arise from
Justice Heintz’ decisions.
The Amended Complaint merely alleges that Navarro and Captain Savage were
“part of this entourage” of the other Deputies in the courtroom (Docket No. 20, Am. Compl.
¶ 100) and that Navarro orchestrated “such violations of due process” (id. ¶ 102). Megan
Shimburski has not alleged in the Amended Complaint that Captain Savage or Navarro
orchestrated having the other uniformed officers present during the dangerous dog
hearing (but cf. Docket No. 28, Pls. Memo. at 12).
Plaintiff fails to establish the duty either Navarro or Captain Savage had in ensuring
the proper conduct of this dangerous dog proceeding. As a public proceeding, Navarro
and Captain Savage had a right to be present. Plaintiffs’ counsel wrote to the County
Attorney and Sheriff Howard on August 10, 2014, advising them of the dangerous dog

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proceeding and seeking their intervention to dismiss the charges (Docket No. 25, Defs.
Atty. Decl. ¶ 6, Ex. B; id., Defs. Memo. at 16-17). Thus advised of the proceeding, Plaintiff
should not be surprised if Detective McCarthy’s supervisor and an attorney from the Erie
County Attorney’s office were present at the dangerous dog proceeding (id. at 17).
Plaintiffs also allege that the process for the dangerous dog hearing was
inadequate (Docket No. 20, Am. Compl. ¶ 99) without stating the deficiencies or alleging
the role (if any) the Navarro or Captain Savage had in issuing the process. Again, the
Commission on Judicial Conduct found that Justice Heintz erred in sua sponte sending
notices of the proceeding to witnesses he believed would help the prosecution. Thus,
Plaintiffs fail to allege a substantive due process claim regarding this defective process.
Megan Shimburski complains about the ‘”lined deputies” that encircled the
courtroom during that proceeding, while only naming two purported members of that
entourage (Navarro and Captain Savage) (id. ¶ 100). She argues that they prejudiced
the proceeding and affected Justice Heintz. This allegation does not plausibly state a
claim.

Plaintiffs fail to allege that these officers were present at the direction of

Captain Savage or deny that they were present for other business (for example, as
witnesses in Lady’s dangerous dog hearing or other cases scheduled that evening) (see
Docket No. 30, Defs. Reply Memo. at 8). Defendants reply that the cases cited by
Plaintiffs (Docket No. 28, Pls. Memo. at 11, citing Holbrook v. Flynn, 475 U.S. 560 (1986);
Taylor v. Kentucky, 436 U.S. 478 (1978)) involve jury trials and the impressions of litigants
made upon jurors (Docket No. 30, Defs. Reply Memo. at 7-8). Here, that distinction is
lessened because it was a bench proceeding but presided over by a lay jurist conducting
his very first proceeding. Nevertheless, Plaintiffs fail to state a claim here.

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Plaintiffs did allege that Captain Savage excluded two of Megan Shimburski’s
witnesses from the proceedings without a basis (Docket No. 20, Am. Compl. ¶ 101).
Although Defendants argue that sequestration of witnesses is common and does not
violate due process (Docket No. 25, Defs. Memo. at 17-18), the prosecution did not move
to sequester witnesses (although, according to the Commission’s findings, the prosecutor
did object to the presence of one witness, 2015 WL 9590797, at *2), Megan Shimburski
did not disclose her witnesses to be sequestered, and the court did not order the
sequester.

It was not clear from this record whether Justice Heintz ordered

Captain Savage to remove the two witnesses. Again, from the Commission’s admonition
order, it noted that Megan Shimburski’s counsel said that Sheriff’s Deputies had directed
the animal control officer (another witness for her) to leave the courtroom, id., with
Justice Heintz stating that he did not have a witness list to know who was to appear.
Thus, it appears on this record that Captain Savage acted on his own to exclude Megan
Shimburski’s witnesses; at this stage, this Court merely notes that Plaintiffs have alleged
a cause of action regarding the removal of these witnesses.
Therefore, at this pleading stage, Plaintiffs have alleged a cause of action
against Captain Savage for removing Megan Shimburski’s witnesses apparently without
due process. Defendants’ Motion to Dismiss (Docket No. 25) against this claim against
Captain Savage is denied but their motion to dismiss other claims against
Captain Savage and those claims against Navarro is granted.
E. “Sixth” Cause of Action for Punitive Damages
First, Defendants argue that all Plaintiffs had not asserted punitive damages
against Captain Savage and Navarro; that only Megan Shimburski alleged claims against

25

these two defendants (Docket No. 25, Defs. Memo. at 19) for compensatory and punitive
damages. Plaintiffs have not addressed this argument distinguishing the claim of Megan
Shimburski as opposed to the claim of all Plaintiffs (see Docket No. 30, Defs. Reply
Memo. at 9). The claims against Navarro and Captain Savage only arise from the
dangerous dog hearing in which Megan Shimburski only was a party. As just stated, the
only remaining claim here is against Captain Savage for removing Shimburski’s witnesses
from that courtroom. Therefore, the other Plaintiffs lack a claim for punitive damages from
Navarro or Captain Savage. As held above, Megan Shimburski also fails to state a claim
for punitive damages against Navarro because her damage claim is premised on her
successfully alleging a substantive claim against him. She still alleges potential punitive
damages against Captain Savage.
Next, as Defendants point out (Docket No. 25, Defs. Memo. at 19-20), Plaintiffs
have not made specific factual allegations against Sheriff Howard or the detective
Defendants to state intentional or malicious conduct warranting punitive damages.
Plaintiffs concede that punitive damages are not available against municipalities or those
acting in their official capacity for the municipality (cf. Docket No. 28, Pls. Memo. at 1618).
Defendant’s Motion to Dismiss the punitive damages claims (Docket No. 25) is
granted in part, denied in part. Punitive damage claim survives against defendant
Savage.
IV.

Conclusion

For the reasons stated above, the County Defendants’ Motion to Dismiss (Docket
No. 25) is granted in part, denied in part. Plaintiffs have alleged their First Cause of

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Action for the violation of the Fourth Amendment in seizing Lady by unreasonably
wounding her; the defense Motion to Dismiss is denied. Plaintiffs’ Fourth Cause of Action
is dismissed; thus, claims against Erie County and Sheriff Howard are dismissed.
Plaintiff Megan Shimburski’s Fifth Cause of Action against Captain Savage survives this
motion, while her claims against Navarro are dismissed. Plaintiffs’ punitive damages
claims are dismissed in part but remain alleged against Defendant Captain Savage
under the Fifth Cause of Action for removing Megan Shimburski’s witnesses.
Following disposal of this motion, Defendants sought dismissal of only some of
Plaintiffs’ causes of action. The defense did not address the Second and Third Causes
of Action for alleged unlawful entry and unreasonable seizure of Plaintiffs during the
July 25, 2014 search (see Docket No. 30, Defs. Reply Memo. at 3). Thus, Plaintiffs’
claims against McCarthy, Noecker, and Graham, for illegal seizure of Lady by wounding
her; unlawful entry; and unreasonable seizure, false arrest, and false imprisonment of
Plaintiffs remain (the First, Second, and Third Causes of Action).

The remaining

Defendants are McCarthy, Noecker, Graham, and Captain Savage, while dismissed by
this Decision and Order are Defendants County of Erie, Sheriff Timothy Howard, and
Thomas Navarro.
Plaintiffs shall amend the Complaint (cf. Docket No. 20) reflecting this Decision
and Order as well as the Stipulation (Docket No. 35) dismissing claims against DeGoiler.
They shall serve and file this Second Amended Complaint by Friday, October 23, 2020.
Remaining Defendants shall answer or move against this Second Amended Complaint
within fourteen (14) days of its service. Upon the filing of that Answer, this case will be
referred to a Magistrate Judge to consider pretrial matters. With this referral to the

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Magistrate Judge, this Court commends to the parties to consider early intervention by a
mediator or other neutral; the Magistrate Judge is encouraged to facilitate the selection
of a mediator and the prompt conduct of an initial mediation session. To ensure progress
is made in this case and movement to its swift resolution, the Court also urges the
Magistrate Judge to schedule a status conference with the remaining parties as soon as
feasible.
V.

Orders

IT IS HEREBY ORDERED, that the County Defendants’ Motion to Dismiss (Docket
No. 25) is GRANTED IN PART and DENIED IN PART, as specified above;
FURTHER, that claims against Defendants the County of Erie, Sheriff Timothy
Howard, and Thomas Navarro are DISMISSED;
FURTHER, Plaintiffs shall serve and file a Second Amended Complaint consistent
with this Decision and Order by Friday, October 23, 2020;
FURTHER, that the remaining Defendants shall serve and file an Answer within
fourteen (14) days of service of the Second Amended Complaint;
FURTHER, that upon the filing of that Answer, this Court will refer this case to a
Magistrate Judge for further proceedings, including conducting a status conference and
scheduling of mediation.

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SO ORDERED.

Dated:

September 22, 2020
Buffalo, New York

s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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